TMI Tax Updates - e-Newsletter
April 5, 2018

Case Laws in this Newsletter:

Income Tax Customs Service Tax Central Excise

Articles

1. SERVICE TAX LIABILITY ON ‘PCO’ CHARGES

   By: DR.MARIAPPAN GOVINDARAJAN

2. Latest updates on E-way Bill - Live Facebook discussion by Mr. Bimal Jain

   By: Bimal jain

News

1. Government sets up an IT Grievance Redressal Mechanism to address the grievances of taxpayers due to technical glitches on GST Portal

2. Special Package for Employment Generation in Leather and Footwear Sector

3. 2nd Lead-up Conference to 3rd Annual Meeting of Asia Inastructure Investment Bank— AIIB’s on 'Enhancing Port and Coastal Infrastructure' concludes in Visakhapatnam

4. 15th Finance Commission visits Arunachal Pradesh from 5th to 8th April 2018

5. 8,625 Startups Recognised as on 30 March, 2018

6. Repayment of 10.45% Government Security 2018

7. RBI Reference Rate for US $

8. Second lead-up Conference to 3rd Annual Meeting of Asian Infrastructure Investment Bank (AIIB) on 'Enhancing Port and Coastal Infrastructure' begins in Visakhapatnam;

Notifications

Customs

1. 30/2018 - dated 4-4-2018 - Cus (NT)

Non-levy of additional duty of customs to jute importers from Nepal u/s 28 A of Customs Act, 1962"

GST - States

2. ERTS(T) 102/2017/008 - dated 31-3-2018 - Meghalaya SGST

No E-waybill shall be required in respect of intra-state movement of goods within the State of Meghalaya.

3. ERTS(T) 79/2017/546 - dated 23-3-2018 - Meghalaya SGST

Last date for filing of return in FORM GSTR-3B.

4. ERTS(T) 79/2017/545 - dated 23-3-2018 - Meghalaya SGST

Notification to notify the date from which E-Way Bill Rules shall come into force.

5. ERTS(T) 79/2017/544 - dated 23-3-2018 - Meghalaya SGST

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

6. ERTS(T) 79/2017/543 - dated 23-3-2018 - Meghalaya SGST

Amendment in the Notification No. ERTS(T)65/2017/8 dated the 29th June, 2017 and No. ERTS(T)65/2017/Pt.I/99, dt. 9.11.2017

7. ERTS(T) 79/2017/516-12/2018-State Tax - dated 7-3-2018 - Meghalaya SGST

The Meghalaya Goods and Service Tax (Second Amendment) Rules, 2018

8. 5205/CT., Pol-41/1/2017 - dated 31-3-2018 - Orissa SGST

Documents to be carried while transporting of Goods w.e.f. 1st April 2018.

9. 5199/CT., Pol-41/1/2017 - dated 31-3-2018 - Orissa SGST

Generation of e-Waybills w.e.f. 1st of April 2018.

10. 7878-FIN-CT1-TAX-0043/2017-S.R.O. No. 107/2018 - dated 23-3-2018 - Orissa SGST

Amendment in the Notification No.19857-FIN-CT1-0022-2017, dated the 29th June, 2017-S.R.O. No. 302/2017 and No.29799-FINCT1-TAX-0043-2017, dated the 13th October, 2017-S.R.O. No. 479/2017.

11. 7874-FIN-CT1-TAX-0034/2017-S.R.O. No. 106/2018 - dated 23-3-2018 - Orissa SGST

Appoint the 1st day of April, 2018, as the date on which the provisions of rule 3[other than clause (7)],rules 4, 5, 6, 7, and 8shall come into force.

12. 7870-FIN-CT1-TAX-0034/2017-S.R.O. No. 105/2018 - dated 23-3-2018 - Orissa SGST

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

13. F.No. 3240/CTD/GST/2018/2 - dated 29-3-2018 - Puducherry SGST

Exemption from Generation of e-way bill for Intra-State movement of goods.

14. F.No. 3240/CTD/GST/2018/1 - dated 29-3-2018 - Puducherry SGST

Seeks to mandate the furnishing of return in FORM GSTR-3B from April to June 2018

15. G.O. Ms. No. 21 - dated 28-3-2018 - Puducherry SGST

Appointed date for the E-way bill rules to come into force.

16. G.O. Ms. No. 20 - dated 28-3-2018 - Puducherry SGST

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

17. G.O. Ms. No. 10/2018-Puducherry GST (Rate) - dated 28-3-2018 - Puducherry SGST

Amendment in the Notification G.O. Ms. No.8/2017-Puducherry GST (Rate), dated the 29th June, 2017 and No.38/2017-Puducherry GST (Rate), dated the 24th October, 2017.

18. G.O. Ms. No. 36 - dated 16-3-2018 - Tamil Nadu SGST

Constitution of State Level Screening Committee on Anti-Profiteering for The Tamil Nadu under the Tamil Nadu Goods and Services Tax Act, 2017.

Indian Laws

19. CORRIGENDA - dated 3-4-2018 - Indian Law

CORRIGENDA - THE FINANCE ACT, 2018 No. 18 OF 2018

20. F. No. 3/10/2017-FRBM - dated 31-3-2018 - Indian Law

Central Government appoints the 31st day of March, 2018 as the date on which the provisions of PART XV of Chapter VIII of the Finance Act, 2018 (No.13 of 2018) shall come into force

21. F. No. 2/12/2006-NS - dated 31-3-2018 - Indian Law

Central Government appoints the 1st day of April, 2018 as the date on which the Part I of Chapter VIII of the Finance Act, 2018 (13 of 2018), shall come into force

22. F. No. 2(10)-B(AC)/2018 - dated 31-3-2018 - Indian Law

Central Government appoints the 31st day of March, 2018 as the date on which the provisions of PART XIII of Chapter VIII of the Finance Act, 2018 (No.13 of 2018) shall come into force

Circulars / Instructions / Orders

DGFT

1. Trade Notice No. 1/2018-19 - dated 4-4-2018

EODC Monitoring System for Advance/EPCG Authorisations

Highlights / Catch Notes

Income Tax

• High Court rules TDS on payments for transporting petroleum products falls u/s 194C, applicable to transport contracts.

  Case-Laws - HC : TDS u/s 194C OR 194I - payment made by assessee to the Carrier under the contracts for transporting the petroleum products in the business in which the respondent assessee is engaged - the contract involved exclusive use of vehicles by the respondent assessee in carrying on its business - TDS would be deducted u/s 194C - HC
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• Income Tax Department's Garnishee Deduction Ruled Illegal; Ordered to Refund with Interest.

  Case-Laws - HC : Refund of amount deducted from the petitioner account due to garnishee proceedings - the action of the Department is illegal, arbitrary and totally unauthorized in the peculiar facts and circumstances, since amount was recovered by the respondent Income Tax Department therefore the Department is liable to pay the said amount with interest at the rate applied - HC
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• UPS Depreciation Rate Set at 60% When Used with ATMs or Computers, Assessing Officer to Verify Usage.

  Case-Laws - AT : Rate of depreciation on UPS - UPS also can be considered as a computer if it is connected to the ATM Machine or a Computer and depreciation thereon is allowable at 60%. AO is directed to verify if the UPS are used for the functioning of the ATM and allow depreciation accordingly. - AT
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• Expenditure on leased office improvements like ceilings and partitions is revenue expenditure, tax-deductible, not creating enduring assets.

  Case-Laws - AT : Nature of expenditure on leased premises for office use - the expenditure incurred on false ceiling as well as partition, glass etc., cannot be held to be creating any asset of an enduring nature - to be allowed as revenue expenditure - AT
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Customs

• Nepalese Jute Importers Exempted from Additional Customs Duty for 2015-2016 u/s 28A, Customs Act, 1962.

  Notifications : Non-levy of additional duty of customs to jute importers from Nepal u/s 28 A of Customs Act, 1962 - period from the 17th July, 2015 to the 15th December, 2016 - retrospective exemption
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Service Tax

• Single Authority to Adjudicate Multiple Show Cause Notices for Same Entity, Highest Duty Case Officer Decides.

  Case-Laws - HC : Appointment of adjudicating authorities - only if similar show cause notices are issued to the same noticee by different adjudicating authorities, all such notices would be adjudicated by one adjudicating authority, i.e. the officer competent to decide the case involving the highest amount of duty. The challenge to the order dated 16.09.2015 also fails - The challenge to the order fails - HC
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• Sale of Developmental Rights Not Subject to Service Tax; Not Classified as Real Estate Commission.

  Case-Laws - AT : Service tax liability - the consideration received by the respondent is towards sale of Developmental Rights to the land and cannot be considered as commission for real estates agents services - AT
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• Cricket player not liable for service tax; wearing team gear isn't considered brand promotion, says court.

  Case-Laws - AT : Revenue entertained a view that the appellant was promoting activities of the franchisee by wearing franchisee's official cricket clothing, displaying franchisee's mark/ logo etc. which was nothing but akin to promotion or marketing of the logo/ brands/ marks of the franchisee/ sponsor - No service was provided by the player, nor requiring him to discharge any service tax. - AT
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• Cenvat credit refund approved despite invoice errors; minor mistakes like incorrect addresses deemed rectifiable.

  Case-Laws - AT : Refund of unutilized Cenvat credit - invoices do not contain PAN based registration number - invoices having wrong address - the mistakes committed on the said invoices were of minor nature, such as mistake of writing sector number or addresses etc. and they were rectifiable - credit allowed - AT
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Central Excise

• Refund Date Tied to Final Assessment Adjustment; Sections 11A and 11B Restrictions Not Applicable to Provisional Cases.

  Case-Laws - HC : Refund of duty - the relevant date will be the date of adjustment of the duty after final assessment made thereof. The restrictions in Section 11A and Section 11B would not apply to refund claims consequent upon finalisation of provisional assessment orders. - HC
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• Insufficient Evidence: Demand Set Aside Due to Lack of Direct Proof in Pen Drive Case Involving Trader's Premises.

  Case-Laws - AT : Clandestine removal - pen drives recovered from the premises of an independent trader - the documents recovered from the premises of the third parties are required to be dealt with, with a caution and requires further corroboration in the shape of the evidences directly related to the manufacturing units in question - demand set aside - AT
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• CENVAT Credit Allowed Despite Xerox Copies of Courier Bill of Entry; Original Invoices Not Required for Each Party.

  Case-Laws - AT : CENVAT credit - duty paying documents - Xerox copies of courier Bill of Entry - there was no scope for issuing the original invoice in favour of each and every party and credit should not be denied - credit to be allowed - AT
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• Imported Oil Not Excisable: Report Finds No Conversion to Edible Oil, Challenging Revenue's Tax Basis.

  Case-Laws - AT : Excisability - Conversion of imported oil into edible oil - As far the report, the imported oil can never be converted into edible oil and the said report defaces the Revenue's entire stand - AT
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Case Laws:

• Income Tax

• 2018 (4) TMI 142
  TDS u/s 194C OR 194I - payment made by assessee to the Carrier under the contracts for transporting the petroleum products in the business in which the respondent assessee is engaged - the contract involved exclusive use of vehicles by the respondent assessee in carrying on its business - Held that:- We have noticed the terms of the preamble. We have noticed various clauses. We are in agreement with the view of the Appellate Authority as affirmed by the Tribunal. It is a case, where the Carrier under the contract was undoubtedly obliged to maintain the requisite number of trucks of a particular type subject to various restrictions and conditions, but it was under the obligation to operate the Trucks for the purpose of transporting the goods belonging to the Company. Therefore, we would think that use of the words “exclusive right to use the truck” found in Clause 1 and also in Clause 6(e) may not by itself be decisive of the matter. We would think that even after the amendment to the Explanation under Section 194-I, the case cannot fall within its scope as it is a case of a contract of the transport of the goods and, therefore, a contract of work within the meaning of Section 194-C and not one which falls within the Explanation of Section 194-I, namely, use of plant by the respondent Company. Thus the contracts in question read as a whole, in our view, will yield the inevitable conclusion that the cases at hand must fall within the four corners of Section 194-C - Decided in favour of assessee.

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• 2018 (4) TMI 141
  Justification for invoking the provisions of explanation 3 to Section 43(1) - Held that:- Eplanation given by the Respondent for purchase of generator sets at 5.27 Crores was reasonable. This coupled with the facts that Revenue did not make any enquiry to find that the market value of similar generator sets as purchased by the Respondent from Kirloskar Oil Engines Ltd., as found by the Tribunal. We find that the Revenue seems to have proceeded on suspicious rather than on facts to disregard the purchase price of 5.27 Crores for generator sets and reduce the actual cost. In the above facts, the view taken by the Tribunal is a reasonable and possible view and Explanation III to Section 43(1) of the Act will not apply in these facts. No substantial question of law. Set off of unabsorbed depreciation of assessment year 1999-2000 against the income for Assessment Year 2008-09 - Held that:- The issue raised by the Revenue stands concluded against it and in favour of the Assessee by the decisions of this Court in CIT v/s. Hindustan Unilever Ltd. [2016 (7) TMI 1245 - BOMBAY HIGH COURT] and Pr. CIT v/s. Hindustan Antibiotics Ltd [2018 (4) TMI 140 - BOMBAY HIGH COURT] - No substantial question of law.

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• 2018 (4) TMI 140
  Revision u/s 263 - AO has allowed setoff of brought forward loss in the said year without application of mind - whether the Assessee would be entitled to carry forward unabsorbed deprecation pertaining to the period 1974-75 to 1996-97 for more than eight years that is beyond assessment year 2004-05 - Held that:- The questions as proposed have become academic in view of the decision of this Court in Commissioner of Income Tax Vs. Hindustan Unilever Ltd. (2016 (7) TMI 1245 - BOMBAY HIGH COURT) which has approved and the decision of the Gujarat High Court in General Motors India Pvt.Ltd. (2012 (8) TMI 714 - GUJARAT HIGH COURT) on this very issue - No substantial question of law.

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• 2018 (4) TMI 139
  Refund of amount deducted from the petitioner account due to garnishee proceedings - garnishee proceeding initiated against the petitioner on account of income tax dues not of the petitioner but of the respondent District Mining Officer - Exercise of jurisdiction under section 226 (3) (x) by ITO - Held that:- We are of the considered view that the ITO (TDS) Bhagalpur cannot act arbitrarily and extend favour to the Mining Department and release their Bank account and decide to attach the Bank account of the petitioner and recover the tax liability from the Bank account of the petitioner. After exchange of pleading it has emerged in this case (a) there was no amount recoverable from the petitioner, (b) on 14.10.2017 the petitioner has surrendered the settlement of Mining lease and the State Government vide letter dated 20.10.2017 directed calculation of outstanding and as such on 23.10.2017 while passing order declaring assessee in default under Section 226(3)(x) the aforesaid development was not considered. Accordingly, the order contained in Annexure-12 dated 23.10.2017 is hereby set aside. After closure scrutiny of the entire facts and circumstances of the case, we notice that neither the Income Tax Department nor the Mines Department has come out with any corrective measures to refund the excess amount or the amount deducted from the bank account of the petitioner and as such we hereby direct the Income Tax Department to forthwith return the amount recovered from the bank account of the petitioner as we are of the considered view that the action of the Department is illegal, arbitrary and totally unauthorized in the peculiar facts and circumstances, since amount was recovered by the respondent Income Tax Department therefore the Department is liable to pay the said amount with interest at the rate applied - We direct that after refund of the amount recovered from the bank account of the petitioner, the Income Tax Department may pursue the matter for recovery in accordance with law against the Mines and Geology Department and take all legal recourse which is admissible under the law including under Section 276B and 276BB.

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• 2018 (4) TMI 138
  Grant of approval u/s 10(23C)(iv) - application before the wrong authority - Held that:- We have no reason to reject the plea of the petitioner that inadvertently, the application was filed before respondent No. 4. When the petitioner filed the application before the wrong authority, the same should have been returned. As noted hereinbefore, instead of returning the petitioner's application, an enquiry was held and additional material was sought for, obviously making the petitioner to believe that its application is pending consideration. Therefore, the blame is equally apportionable to both parties. If the petitioner is entitled to exemption on merits, it would be iniquitous to deny consideration of its application, merely because it was not addressed to the correct authority. Therefore, we are of the opinion that it would be in the fitness of things, if application, dated September 30, 2015, filed by the petitioner is treated as the one filed before the competent authority, i.e., respondent No. 1. Accordingly, respondent No. 4 is directed to forward the application filed by the petitioner for exemption in form 56 along with the enclosures to respondent No. 1 within two weeks from the date of receipt of a copy of this order. Within two months thereafter, respondent No. 1 shall hold an enquiry, pass an appropriate order and communicate the same to the petitioner.

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• 2018 (4) TMI 137
  Penalty proceedings u/s 271(1)(c) - disallowance of interest claimed out of net profits - Held that:- The issue being debatable as two views were possible regarding allowability of interest in cases where profit had been declared on presumptive basis, penalty for concealment could not be levied. Hence penalty levied on addition of interest of 42,22,678 was cancelled. Penalty levied on disallowance of depreciation - Held that:- CIT(A) has rightly held that it is not a case of furnishing of inaccurate particulars of income or concealment of income for the purpose of avoidance or evasion of tax. The assessee in this case has made bonafide claim. The disallowance on the above issues was made by the Assessing Officer on account of difference of opinion and not on account of detection of any concealment of income. No penalty to be levied . - Decided against revenue.

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• 2018 (4) TMI 136
  Disallowance u/s 40(a)(ia) - retrospective application of second proviso to Section 40(a)(ia) of the Act - Held that:- It is not disputed that Section 40(a)(ia) proviso is for the benefit of Assessee. When a provision has been made in fiscal statute for benefit of Assessee, in absence of any express provision or a provision which by necessary implication gives a different impression, such provision which is beneficial to Assessee must be read and given effect to retroactively and reiterating this principle Constitution Bench of Apex Court in Commissioner of Income Tax Vs. Vatika Township [2014 (9) TMI 576 - SUPREME COURT] as held that the rule against retrospective operation is a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. Dogmatically framed, the rule is no more than a presumption, and thus could be displaced by out weighing factors - Decided in favour of Assessee

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• 2018 (4) TMI 135
  G.P. estimation - whether on the facts and circumstances of the case, there is implied limitation of no enhancement beyond earlier assessed income in the direction of the Tribunal to apply proper and reasonable GP rate? - Held that:- It is evident that returns of income of Assessment Year 1986-87 were not available before the CIT(A). However, the Gross Profit rate was computed with reference to the returns of the subsequent Assessment years i.e. 1989-90 to 1991-92. Thus, there was no positive evidence before the CIT(A) to assess the Gross Profit rate. ITAT however fail to appreciate the aforesaid aspect of the matter. ITAT ought to have appreciated that only reasonable and proper gross profit rate was to be applied and the appellant was the only dealer who had entered into bulk purchases of timber with State Forest Corporation. Merely because M/s JaswantRa iArora deals in timber, it could not have been put in the category of similar dealers as it has not made bulk purchases of timber with State Forest Corporation. The returns of the subsequent years i.e. 1989-90 to 1991-92 could not have been taken into account for computing the gross profit rate in respect of Assessment Year 1986-87. Thus, the finding with regard to gross profit rate is based on surmises and conjectures and in fact has been arrived at in contravention of the directions contained in the order dated 31.08.1999 passed by the ITAT.

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• 2018 (4) TMI 134
  Disallowance of interest expenditure - whether investments in sister concerns served any business purpose - Held that:- The Pr. Commissioner of Income Tax (Central), Ludhiana v. Shri Satish Bala Malhotra, Legal Heir of Shri Ashok Kumar Malhotra, Prop. M/s Modern Publishers, MBD House, Railway Road, Jalandhar [2017 (4) TMI 1330 - PUNJAB & HARYANA HIGH COURT] and The Pr. Commissioner of Income Tax (Central), Ludhiana v. M/s Malhotra Book Depot, MBD House, Railway Road, Jalandhar [2017 (5) TMI 638 - PUNJAB AND HARYANA HIGH COURT] as held there was sufficient non-interest borrowing funds out of which the assessee had advanced/invested in sister concerns. - Decided in favour of assessee

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• 2018 (4) TMI 133
  Application u/s 10 (23C)(vi) - rejection of application on the ground that the assessee had not been complying with the provisions of RTE Act - whether the provisions of the RTE Act would apply to the school being run by the assessee-society, which imparts education from Class Play to Class K.G only? - Held that:- It is not disputed that the school in question is only upto K.G class. No doubt has been raised with regard to the genuineness of the activities of the society. There was no challenge with regard to genuineness of the activities of the society either before the Tribunal or before this court. The Tribunal, after considering Sections 2 (f), (n) and 12 of the RTE Act, came to the conclusion that these provisions are applicable to the schools imparting education from Ist Class to 8th Class, and hence the school of the respondent – assessee will not be governed by the RTE Act. Learned counsel for the appellant – revenue has not been able to show that the provisions of the RTE Act are applicable in the present case. He has further not been able to show that the findings recorded by the Tribunal are in any way illegal or perverse warranting interference by this Court. Consequently, no substantial question of law arises

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• 2018 (4) TMI 132
  Entertainment subsidy received by the assessee under Uttar Pradesh Government Scheme for promotion of construction of multiplexes - relief under section 80IB - revenue or capital receipt - Held that:- In the case of the assessee, the Uttar Pradesh State Government issued a letter to the assessee for grant of entertainment tax subsidy and based on the relevant Scheme of Uttar Pradesh Government, it reveals that subsidy was granted to multiplexes under Uttar Pradesh Government’s Incentive Scheme for “Promotion for construction of Multiplexes” and overall quantum of subsidy is limited to the cost of construction, (excluding cost on land). Entertainment subsidy received by the assessee under Uttar Pradesh Government Scheme for promotion of construction of multiplexes was, thus, capital receipt. The object of grant of subsidy was in order that the persons come forward to construct Multiplex Theatre Complexes. The idea being that exemption from entertainment duty was granted for 05 years. It is also provided in the Scheme that if the cost is recovered prior to 05 years, for rest of the period, the entertainment tax would be leviable. As per the Scheme, subsidy equivalent to the cost of building and machinery was allowed to be collected as entertainment tax with the operator/owner of the said Multiplex, being allowed to retain the amount, equivalent to the eligible amount over a period of 05 years. The issue is, therefore, covered in favour of the assessee in the case of CIT-1, Kolhapur vs. M/s. Chaphalkar Brothers, Pune (2017 (12) TMI 816 - SUPREME COURT). The Departmental Appeal has no merit - Decided in favour of assessee.

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• 2018 (4) TMI 131
  Penalty u/s. 271(1)(c) - non specification of charge - defective notice - Held that:- The show cause notice issued in the present case u/s 274 of the Act does not specify the charge against the assessee as to whether it is for concealing particulars of income or furnishing inaccurate particulars of income. The show cause notice u/s 274 of the Act does not strike out the inappropriate words. In these circumstances, we are of the view that imposition of penalty cannot be sustained - Decided in favour of assessee.

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• 2018 (4) TMI 130
  Penalty u/s 271(1)(c) - disallowances/additions on incentive payments, unexplained cash credits/deposits u/s.68, loans and advances to M/s. Cox and Kings (India) Ltd., other persons and expenditure incurred by assessee’s Director Shri Ashwin Patel - Held that:- For disallowances/additions on incentive payments quantum disallowance had been made on ad hoc basis without any question of its genuineness per se. We conclude that accordingly that the same is not in the nature of furnishing of inaccurate particulars of income as the quantum disallowance hereinabove has arisen as the assessee could not prove its justification to have incurred the same in the relevant previous year as per its turnover and profit figure. We accordingly accept assessee’s challenge to correctness of the impugned penalty qua this first issue. Section 68 addition - It emerges that the Assessing Officer’s remand report submitted during the course of the quantum lower appellate proceedings on 10.05.2010 found aggregate sum of 12,21,251/- out of 12,61,251/- to be genuine. The assessee does not appear to have filed confirmation of Shri Narayanbhai Motibhai in this regard. We observe in these facts that the said failure in view of all mitigating facts particularly in view of the tax payer having proved almost all of the amounts in question cannot be taken as an instance of furnishing of inaccurate particulars of income. We accept assessee’s challenge to the impugned penalty qua this second issue as well. Quantum addition in the nature of payments made to various parties Departmental Representative fails to dispute that the CIT(A) has not specifically rejected the above telling of the cash balance vis-à-vis the sum in question. We therefore delete the impugned penalty pertaining to this third issue as well. Expenditure incurred by assessee’s Director Shri Ashwin Patel - It emerges that the assessee has not filed any explanation much less a satisfactory one in quantum as well as in the instant penalty proceedings. We thus reject assessee’s substantive ground relevant to the instant issue. The impugned penalty on this last issue is therefore affirmed. - Decided partly in favour of assessee.

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• 2018 (4) TMI 129
  Validity of Section 153A proceedings - Held that:- Assessing Officer had framed two regular assessments well before the search in question not leading to any incriminating material. We thus follow hon’ble jurisdictional high court’s decision in PCIT vs. Saumya Construction Pvt. Ltd. [2016 (7) TMI 911 - GUJARAT HIGH COURT] holding that the impugned proceedings u/s. 153A of the Act are not sustainable in absence of any incriminating material or evidence found/seized during the course of search - Decided in favour of assessee

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• 2018 (4) TMI 128
  Section 14A r.w. Rule 8D disallowance - Held that:- As decided in assessee's own case [2017 (4) TMI 1332 - ITAT AHMEDABAD] no interest was warranted on account of interest component. The disallowance offered by the assessee was certainly much more than adequateparticularly as the factual elements embedded in learned counsel's contentions are not even disputed before us. We, therefore, vacate the impugned disallowance - Decided in favour of assessee.

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• 2018 (4) TMI 127
  Rate of depreciation on UPS, Cash Dispenser and ATM Switch - Held that:- We find that the issue in dispute squarely covered by the decision of the coordinate bench in AY 2013-14 wherein held the assessee is eligible for depreciation @ 60% on ATM and other related accessories. As regards depreciation @ 60% on UPS is concerned, we find that though the UPS can independently function without the assistance or integration with a computer and is an alternate mode of supply of power and does not depend on any assistance from a computer, the computer can function only on a power supply and when there is no power supply, it is connected to UPS so that it can work uninterruptedly and without losing the unsaved data when the power goes off. Therefore, UPS also can be considered as a computer if it is connected to the ATM Machine or a Computer and depreciation thereon is allowable at 60%. AO is directed to verify if the UPS are used for the functioning of the ATM and allow depreciation accordingly. Addition on account of interest receivable on NPAs - Held that:- As the issue under consideration is identical to AY 2013-14, following the decision of the coordinate bench in the said year, we direct the AO to consider the interest on NPAs as income only in the year of receipt. Accordingly, the addition made on this count is hereby deleted and ground of assessee is allowed.

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• 2018 (4) TMI 126
  Nature of expenditure on leased premises for office use - expenditure on fixtures like partitions, false roofing, glass and minor civil works - Revenue or capital expenditure - proof of asset of enduring nature - Held that:- The assessee has taken three properties on rent but expenditure incurred during the relevant financial year is only on two properties i.e. one at Ameerpet, which was taken on lease for 5 years and the other one at Pune which was taken on lease for a period of 33 months. Therefore, the expenditure incurred on false ceiling as well as partition, glass etc., cannot be held to be creating any asset of an enduring nature. Any expenditure incurred by the assessee, for making the premises suitable for carrying on its business, according to its own standard has been held to be revenue in nature in a number of cases. Hon'ble Delhi High Court in the case of CIT vs. M/s. Hi Line Pens Pvt Ltd [2008 (9) TMI 25 - HIGH COURT DELHI] had considered similar expenditure incurred towards false ceiling, fixing tiles, replacing glasses, wooden partitions, replacement of electric wiring, earthing, replacement of GI pipes etc., and after taking note of all the judicial precedents on the issue as well as the applicability of Explanation (1) to section 32(i) of the I.T. Act has held that the expenditure incurred to make its premises taken on lease, so as to make the premises usable for business activities, is revenue in nature. Admittedly, in the case before us also, the expenditure incurred has been on the premises which have been taken on lease for a period of 5 years to 33 months only. Therefore, we are satisfied that there is no asset of enduring nature created and the assessee is entitled to claim it as revenue expenditure. - Decided in favour of assessee.

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• 2018 (4) TMI 125
  Unexplained jewelry found in search - Held that:- CIT (A) has taken note of the societal pattern in India and also that the jewellery was claimed to be belonging to other family members of the assessee who are also Income Tax Assessees. Therefore, he has rightly held that the entire jewellery found during the course of search cannot be considered as explainable by the assessee alone and also that the assessee had resources over the past years to explain the sources for investment in jewellery as not explained; and to be belonging to the family members. We find that the CIT (A) has appreciated the factual aspect of the issue at length and the learned DR has not been able to rebut these findings. No reason to interfere with the order of the CIT (A). - Decided against revenue

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• 2018 (4) TMI 124
  Levy of penalty u/s 271(1)(c) - Held that:- The additional income year-wise was offered by Shri Shailesh Mahadev Joshi on behalf of himself, his wife and other partnership firms on the basis of documents found and seized during the course of search at his residence. The first set of documents relate to unaccounted sales of Wada Pav and others at different outlets. Another set of documents which were found on account of undisclosed investments in jewellery, deposits with Pat Sansthas, fixed deposits, etc. We have already adjudicated similar issue in the case of Mrs. Vasundhara Shailesh Joshi (2018 (3) TMI 1583 - ITAT PUNE) wherein also the assessment was completed under section 153A r.w.s. 143(3) of the Act. While deciding the issue of levy of penalty levied under section 271(1)(c) of the Act, the Tribunal vide paras 16 to 19 held that the provisions of Explanation 5A to section 271(1)(c) of the Act were clearly attracted and the penalty levied under section 271(1)(c) of the Act has been upheld. - Decided against assessee.

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• 2018 (4) TMI 123
  G.P. Addition - rejection of books of accounts - Held that:- The past history of GP rate declared by the assessee is a proper guide for estimation of income. We further note that it is settled proposition that the rejection of books of accounts would not ipso facto lead to addition if the, GP declared by the assessee for the year under consideration is in the line with the past history of the assessee or more than the GP declared in the earlier years. Thus, the rejection of books of accounts need not necessarily result in an addition to the income of the assessee. Accordingly, we set aside the orders of the authorities below and delete the addition confirmed by the ld. CIT(A) when the GP declared by the assessee for the year under consideration is more than the GP for the earlier assessment which was accepted by this Tribunal. - Decided in favour of assessee

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• 2018 (4) TMI 122
  Additions towards amount in a bank account with HSBC Bank at Geneva - peak credit - husband and wife both were the beneficiary - the amount surrendered by the husband and taxed in his account - advancing of loan by the assess to his family members - Held that:- In the case under consideration the AO had alleged that there was an attempt to reduce the tax burden. The husband of the assessee had the tax at the maximum marginal rate. The AO had accepted the return filed by him and no revisionary proceedings were initiated. After assessing the disputed amount substantively in the hands of BHK, as stated earlier, there was no justification for assessing same in the hands of his wife also. Considering the above, we are of the opinion that there is no legal or factual infirmity in the order of the FAA. - Decision in the case of SP Jaiswal (1997 (3) TMI 4 - SUPREME Court) followed - Decided against the revenue.

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• 2018 (4) TMI 121
  Assessment u/s 153A - Held that:- In all the three assessment years i.e. 2005-06 to 2007-08, the date for issuing notice under section 143(2) of the Act already stands expired and no notice under section 143(2) of the Act was issued prior to the date of search, thus, the assessment under section 143(1) of the Act attained finality and, therefore, all the three assessment years are treated as completed assessments. In respect of assessment years 2005-06 to 2007-08, the assessments had already attained finality before the date of search and no incriminating material was found or seized from the premises of the assessee, and, thus, respectfully following the finding of the Hon’ble Delhi High Court in the case of Kabul Chawla (2015 (9) TMI 80 - DELHI HIGH COURT) no addition could have been made in these assessment years. As no additions could have been made, other grounds of appeal challenging the merit of the addition, both in the appeal of the assessee as well as in the appeal of the Revenue, are rendered infructuous. Treating the agricultural income earned by the appellant as unexplained income - Held that:- CIT(A) has not appreciated the facts and circumstances of the case properly and rejected the entire claim of agricultural income of the assessee, ignoring the land holding of the assessee. In our opinion, in view of land holding and “Land Revenue” records of sowing crops over the land, some agricultural income cannot be denied and in such circumstances, we have no alternative other than estimation of agricultural income. Keeping in view the facts and circumstances of the case, we feel it appropriate to restrict agriculture income of 10,000 per acre and, thus, according to the land holding of approx. 15 acres, the agriculture income of the assessee is restricted to 1,50,000/- and balance agriculture income shown by the assessee is held as undisclosed income of the assessee. The grounds No. 1 to 3 of the appeal are accordingly partly allowed. Addition on unexplained entries appearing in bank account and deemed dividend - admission of additional evidence by CIT-A- Held that:- CIT-(A) has not complied with the provisions of Rule 46A(3) of the Rules and accepted the genuineness of the explanation of the assessee on the basis of inference drawn on the submission of the Assessing Officer in the remand report. We find that the Assessing Officer clearly asked for opportunity to examine the additional evidences, which the Ld. CIT-A did not allow to the Assessing Officer - we feel it appropriate to restore the issue to the file of the Ld. CIT-(A) for complying the provisions of Rule 46A(3) of the Rules

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• 2018 (4) TMI 120
  Assessment u/s 153C - Period of limitation - assessment barred by limitation - issue of limitation raised by the assessee before the Tribunal for the first time - Held that:- The additional grounds raised by the assessee being legal in nature going to the root of the matter, therefore, deserve to be admitted on record. We, however, find that there is nothing on record from the side of assessee as to how the impugned assessment order is being termed as barred by limitation. It is, however, an undisputed fact that this issue was never raised by the assessee before the authorities below and therefore, there is no decision of the lower authorities on this aspect of the case. In presence of these facts, we deem it expedient in the interest of justice that the matter should go back to the file of the ld. CIT(A) for deciding the appeal of the assessee on legal aspect as well as on merits of additions afresh. - Decided in favour of assessee for statistical purposes.

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• Customs

• 2018 (4) TMI 119
  Rejection of appeal for want of jurisdiction - appeal filed before wrong authority, which was not transferred to correct forum, even on being requested by appellant - Held that: - If the Commissioner of Customs(Appeals) was of the view that the appeal lies to the Commissioner of Central Excise(Appeals) then he should have sent the same to that authority but he did not do so in spite of the request made by the appellant. The rejection of the appeal by the Commissioner of Central Excise(Appeals) on the ground that there is no provision of resubmission of the appeal once the appeal is disposed of by the competent authority, this finding of the Commissioner of Central Excise(Appeals) is not sustainable because the Commissioner of Customs (AppeaIs) has not disposed of the appeal on merit; he has rejected the appeal for the reason of wrong jurisdiction. The Commissioner of Central Excise(Appeals) is directed to entertain the appeal which is filed in time and to decide the same on merit - appeal allowed - decided in favor of appellant.

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• 2018 (4) TMI 118
  Smuggling - import of Honda Veradaro XL-1000 CC motorcycle having registration No.KL-40-D-6064 and Chassis No.VTMSD02C07E821804 - notified goods - time limitation - Held that: - the vehicle was imported in 2008 and it was seized from the appellant in the year 2014. Therefore as per Section 28 of the Customs Act, the period within which the duty can be demanded is 5 years which has expired in the year 2013. Therefore, the demand proceeding against the appellant is not sustainable in law. The motor bike involved in the present case is not a notified goods and in the case of no notified goods, the burden is on the Department to produce evidence that the goods were illegally imported and not the person from whose possession such goods are seized. No doubt the Department has produced evidence in the present case that the said vehicle was imported under a forged Bill of Entry but the Department has not been able to establish that the appellant has forged the Bill of Entry in the name of Ganapathi Raman. The proceedings for confiscation of the vehicle after the limitation is unsustainable - appeal allowed - decided against Revenue.

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• 2018 (4) TMI 117
  Classification of imported goods - Zinc Die Cast scrap - Revenue held that the goods were not as per the ISRI grade "Scope" and classified the goods under Tariff Item No. 79020090 - valuation u/s 14 of CA - Held that: - ISRI Code "Scope" does not cover any goods which are having impurity such as plastic. Therefore, there should be no interference with the classification of said consignment decided by Revenue. However, the value was enhanced without following the requirement of Section 14 of Customs Act, 1962. Therefore, matter remanded back to the Original Authority with direction to follow the requirement u/s 14 for arriving at value of the consignment for the purpose of assessment and re-determine the redemption fine and penalty after setting aside the impugned Order-in-Appeal. Appeal allowed by way of remand.

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• Service Tax

• 2018 (4) TMI 116
  Appointment of adjudicating authorities - case of petitioner is that the order dated 16.09.2015 appointing respondent No.4 as an adjudicating authority is bad, as by notification dated 19.04.2007, only Commissioners of Central Excise were given the powers of Central Excise Officers. As a result order dated 08.12.2016 is without jurisdiction, having been passed by the Deputy Commissioner. Held that: - Clause 11.2 (ii) of the Master Circular (CBEC Circular dated 29.09.2016) does not mean that show cause notices issued to different noticees on the same issue shall be adjudicated by one authority. It would relate only to cases where on a similar issue different show cause notices have been issued to the same noticee - Clause 11.5 clarifies the position. If different show cause notices have been issued on the same issue to the same noticee answerable to different adjudicating authorities, then all the show cause notices would be decided by the adjudicating authority in a case involving the highest amount of duty. From a reading of the clauses 11.2 and 11.5 of the Master Circular, the position emerges that only if similar show cause notices are issued to the same noticee by different adjudicating authorities, all such notices would be adjudicated by one adjudicating authority, i.e. the officer competent to decide the case involving the highest amount of duty. The challenge to the order dated 16.09.2015 also fails. Petition dismissed.

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• 2018 (4) TMI 115
  Real Estate agency service - amount received as sale consideration - respondent's claim is that such amount is towards the sale of Developmental Rights for the piece of land in Nashik, whereas Revenue has taken the stand that such amount is towards facilitating the sale of the said piece of land, and hence, liable to payment of Service Tax under the category of Real Estate Agent Services. Held that: - the consideration received by the respondent is towards sale of Developmental Rights to the land and cannot be considered as commission for real estates agents services - reliance placed in the case of CCE, Nashik vs Viraj Estates Pvt. Ltd. [2017 (5) TMI 1143 - CESTAT MUMBAI], where, relying in the case of Sarjan Realties Ltd. [2014 (7) TMI 933 - CESTAT MUMBAI] it was held that the activities of purchase and sale of the land and the amount received by them, and the difference between purchase price and sale price cannot be held as commission and taxable under real estate agent services. Appeal dismissed - decided against Revenue.

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• 2018 (4) TMI 114
  Levy of service tax - sale of books and supply of study martial - Master Circular No.96/7/2007-ST dated 23.08.2007 - whether the circular dated 20.06.2003 on the basis of which original authority had confirmed the demand was valid even after 23.08.2007? - Held that: - circular dated 23.08.2007 is issued in supersession of all circular and clarification issued from time to time by CBEC and with the issue of said circular dated 23.08.2007 all earlier clarifications issued on technical issues relating to service tax stands withdrawn - appeal dismissed - decided against Revenue.

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• 2018 (4) TMI 113
  Benefit of N/N. 45/2010-ST dated 20.07.2010 - appellant had provided "Consultant Engineering Services" to M/s.Power Grid Corporation ltd. and that from Power Grid Corporation appellant has totally received 2,01,89,673 for the period from September 2007 to November 2008 - Held that: - in exercise of the powers conferred by section 11 C of the Central Excise Act, 1944, read with section 83 of the said Finance Act, the Central Government hereby directs that the service tax payable on said taxable services relating to transmission and distribution of electricity provided by the service provider to the service receiver, which was not being levied in accordance with the said practice, shall not be required to be paid in respect of the said taxable services relating to transmission and distribution of electricity during the aforesaid period, It is very clear from the exemption granted through the said notification that all services which were taxable and were relating to transmission and distribution of electricity were retrospective exempted through the said Notification dated 20.07.2010 - appeal allowed - decided in favor of appellant.

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• 2018 (4) TMI 112
  SEZ unit - refund claim - denial on the ground that debit notes did not have the description and classification of taxable service, as required under Rule 4A of Service Tax Rules, 1994 - Held that: - Rule 9 (1) (e) of CCR 2004 has treated the challan, evidencing payment of service tax by the person liable to pay service tax under Reverse Charge Mechanism as a document on the basis of which Cenvat credit can be availed and that the respondent received the service for which they were liable to pay service tax and therefore, challan can be taken as duty paying document. Learned Commissioner (Appeals) has referred to para-3 (f) (ii) of said N/N. 40/2012-ST and held that the requirement in respect of said notification was that the proof of payment of Service Tax and that the services were specified for authorized operations was required to be submitted and since said requirements were fulfilled, there was no need to interfere with the said Order-in-Original dated 22.07.2013. Refund to be allowed - appeal dismissed - decided against Revenue.

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• 2018 (4) TMI 111
  Business Support Services - Revenue entertained a view that the appellant was promoting activities of the franchisee by wearing franchisee's official cricket clothing, displaying franchisee's mark/ logo etc. which was nothing but akin to promotion or marketing of the logo/ brands/ marks of the franchisee/ sponsor - Held that: - Hon’ble Calcutta High Court in the case of Shri Sourav Ganguly Vs Union of India and Others [2016 (7) TMI 237 - CALCUTTA HIGH COURT] has dealt with an identical issue and held that It was not the intention of the legislature that any and every kind of activity which can loosely be termed as ‘Business’ would attract service tax. It being a taxing provision, the same must be construed strictly and any benefit of doubt in the matter of interpretation of the provision must go in favor of the assessee. No service was provided by the player, nor requiring him to discharge any service tax. Appeal allowed - decided in favor of appellant.

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• 2018 (4) TMI 110
  Refund of unutilized Cenvat credit - invoices do not contain PAN based registration number - invoices having wrong address - Held that: - the invoices were issued after performance of service and service receiver cannot be held responsible for non mentioning of PAN based service tax number on the invoices - the mistakes committed on the said invoices were of minor nature, such as mistake of writing sector number or addresses etc. and they were rectifiable and therefore, the said CENVAT credit was admissible to the respondent. Services provided by Chartered Accountant - Held that: - the said credit was on service tax on the services provided by Chartered Accountant and such services were essential for running of the business on day to day basis. Appeal dismissed - decided against Revenue.

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• 2018 (4) TMI 109
  Penalty on appellant - service tax demand paid alongwith interest - renting of immovable property - Held that: - Admittedly service tax stands deposited within a period of six months in which case no penalties shall be imposable on the appellants - reliance placed in the case of Shri P. Patel & Others Versus CST Ahmedabad [2012 (9) TMI 140 - CESTAT, AHMEDABAD], where it was held that As the appellants though initially contested the service tax liability but on 28.09.11 paid the entire amount of service tax liability as confirmed by the lower authorities along with interest case is squarely covered for non imposition of penalties u/s 80A - penalties set aside - appeal allowed - decided in favor of appellant.

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• Central Excise

• 2018 (4) TMI 108
  Unjust enrichment - refund of duty - finalization of provisional assessment - Section 11B of Central Excise Act, 1944 - case of Revenue is that since the duty element was passed on to their customers, the appellant/Assessee has no hold to claim the excess duty - Held that: - the decision in the case of Commissioner of Central Excise Chennai Versus M/s. Dollar Company Pvt. Ltd. [2015 (2) TMI 346 - MADRAS HIGH COURT] applies to the present case, where it was held that the relevant date will be the date of adjustment of the duty after final assessment made thereof. The restrictions in Section 11A and Section 11B would not apply to refund claims consequent upon finalisation of provisional assessment orders. Appeal dismissed - decided against Revenue.

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• 2018 (4) TMI 107
  Refund of unutilized CENVAT credit - rejection on the ground of time bar - Section 11B of the CEA - Held that: - the relevant date would be the date of receipt of the consideration by the service provider in foreign currency - there are no actual dates of receipt of the foreign currency available on record in which case the matter is remanded to the original adjudicating authority for re-decision after verifying the actual date of foreign currency - appeal allowed by way of remand.

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• 2018 (4) TMI 106
  Clandestine removal - Revenue entertained a view that the manufacturing units engaged in the manufacture of Footwear Soles were clearing their final product in a clandestine manner - the entire case of the Revenue is based upon the print outs taken from the Pen drives seized and recovered from the premises of one M/S. BES Traders Agara. Held that: - Admittedly the factories of TFEPL and RCI were also visited by the central excise officers on the same very day and searches were conducted. No discrepancy either in the stock of the raw material/inputs/packing goods or in the final product was detected by the visiting officers. The entire case of the Revenue is based upon the prints outs seized from the premises ofM/s.BES, which is a third party premises - It is well settled law that the documents recovered from the premises of the third parties are required to be dealt with, with a caution and requires further corroboration in the shape of the evidences directly related to the manufacturing units in question. The pen drives recovered from the premises of an independent trader cannot be held to be proper evidence for arriving at the findings of clandestine removal Revenue has not made any efforts to establish the factum of clandestine manufacture of the goods by the appellants. No investigations stand made by the Revenue as regards procurement of the huge raw material, as also the packaging material and their actual manufacture in the appellant s factory. Statement of neither of their employees or production manager stand recorded. Apart from the fact that the Revenue has failed to establish the allegation of clandestine removal, it is also noted that the appellant have produced on record the Chartered Accountant certificate submitting that the production capacity of both the factories was incapable of producing such huge quantum of excisable goods as alleged by the Revenue. It is well settled law that the onus to prove clandestine activities is on the Revenue and is required to be discharged by producing positive, cogent and justifiable evidences - In the present case, no such evidence being available, the findings of clandestine removal cannot be upheld against the two manufacturing units. Penalty on Directors - Held that: - having held that the clandestine removal findings are unsustainable, penalties imposed on the Directors are also set aside. Appeal allowed - decided in favor of appellant.

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• 2018 (4) TMI 105
  Classification of goods - Minute Maid Nimbu Fresh (MMNF) - whether classified under CETH 22021020 or CETH or 22029020 of Schedule to Central Excise Tariff Act, 1985 or otherwise? - Held that: - matter referred to Larger Bench to give its opinion on appropriate classification of MMNF whether under Tariff Item No. 22021020 or 22029020 - The matter may be placed before Hon'ble President for constitution of Larger Bench.

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• 2018 (4) TMI 104
  Refund claim - time limitation - relevant date - Section 11B of the CEA 1944 - Held that: - both the authorities have wrongly computed the period of limitation from the relevant date - the sale transaction completes only on the payment of the amount indicated in the invoice and not from the date of invoice and in the present case the payments were made from 04.04.2014 to 21.04, 2014 and if this is taken as a relevant date then the refund was well within the time limit and the rejection of refund on time-bar is not legally tenable - appeal dismissed - decided against Revenue.

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• 2018 (4) TMI 103
  Benefit of N/N. 123/81-CE dated 02.06.81 - Held that: - there is no dispute that H.S.D. Oil was brought for manufactur in 100% EOU and therefore, the appellants during the period of dispute were eligible for availment of benefit under N/N. 123/81-CE dated 02.06, 1981 - appeal allowed - decided in favor of appellant.

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• 2018 (4) TMI 102
  CENVAT credit - duty paying documents - Xerox copies of courier Bill of Entry - Held that: - courier Bill of entry has been held to be a valid document for taking credit as held by the decision in the case of Precision Electronics Pvt. Ltd. vs. CCE, Noida [2015 (7) TMI 1228 - CESTAT NEW DELHI], where it was held that Since, the Courier Bill of Entry has been issued by the courier agency in favour of various parties/consignees, there was no scope for issuing the original invoice in favour of each and every party and credit should not be denied - credit to be allowed - appeal allowed - decided in favor of appellant.

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• 2018 (4) TMI 101
  CENVAT credit - goods cleared at nil rate of duty and as provided under Sub-rule 3A of Rule 6 of the said Rules - Held that: - the details about the attributable Cenvat credit availed in respect of goods which were cleared at nil rate of duty for the period from 01.04.2008 to 30.092009 is not available on record - matter remanded to original authority to examine the attributable credit that went into the goods which attracted nil rate of duty - appeal allowed by way of remand.

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• 2018 (4) TMI 100
  Abatement of excess duty paid by the respondent - manufacture of Pan Masala - closure of Factory - case of Revenue is that the respondent did not intimate in these three days advance for closer of the factory, and thus are not entitled for the abatement - Held that: - The intent of the Statute to give three days advance notice for sealing the machines, it does not mean that the machine shall be sealed only after days. The intent is that the machine should be sealed within three days - it is a fact on record that Departmental Officer themselves has sealed the factory on 31 August, 2011 the date which was holiday on account of "1du' I Fitr", As the departmental officer worked and was necessary as acted on the said day, in that circumstances Department cannot claim that the said day was holiday, therefore, they have not given intimation three days in advance. The Committee of Commissioner has reviewed the impugned order in casual manner and have not acted seriously while proposing to file the appeal before Tribunal. Appeal dismissed - decided against Revenue.

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• 2018 (4) TMI 99
  Excisability - Conversion of imported oil into edible oil - Revenue entertained a view that the respondent's final product is refined vegetable oil inasmuch as all the processes laid down under the Prevention of Food Adulteration Act, 1954 stands adopted by them - Held that: - the appellate authority's reliance on the laboratory test report conducted by Revenue itself at the time of import of the goods is appropriate. As far the said report, the imported oil can never be converted into edible oil and the said report defaces the Revenue's entire stand - Revenue in their memo of appeal has not advanced any arguments to rebut the above findings of Commissioner (Appeals) - appeal dismissed - decided against Revenue.

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