Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
May 16, 2018
Case Laws in this Newsletter:
GST
Income Tax
Customs
Service Tax
Central Excise
Articles
News
Notifications
Highlights / Catch Notes
GST
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Levy of GST on Service contract with railways - The cleaning services supplied by the applicant to the Northern Railways are not exempted under S. No. 3 of the Notification No. 09/2017 from GST - AAR
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Levy of GST on Service contract with railways - the activity involve use of consumables such as soap/ detergent/ chemicals of a minimal quantity and of a very nominal value are - the activity is "pure service" - Cannot be held as works contract - AAR
Income Tax
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Deduction u/s 36(1)(viia) - double deduction - The assessee might provide for bad and doubtful debts but the deduction would only be allowed at the percentage of aggregate average advance, computation of which is prescribed by Rule 6ABA. - HC
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Addition u/s 40A(3) - payments of expenditure in cash exceeding permeable limits - payments were made in cash for the business expediency of the assessee and as per requirement specified by BSNL. - even if the assessee does not fall in any of the clause of Rule 6DD, invoking the provisions of section 40A(3) can be dispensed with. - AT
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Penalty u/s 271(1)(c) - Just because assessee preferred a claim which was not found acceptable by the AO, would not mean that claim was not a bonafide or was based on inaccurate particulars - AT
Customs
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Classification of imported goods - LAN Network is essentially a system of inter-communication of computers in a given office. They are commonly understood as a computer network and are not described as telecommunication network - AT
Service Tax
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Construction of houses and residential premises - merely because the consideration received from land owners is invested in construction of villas to other buyers on which service tax is paid, it cannot be concluded that service tax paid on consideration received from land owners has to be evaluated differently. - AT
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Nature of activity - deemed sale or service? - in the present case the supply of goods involves transfer of right of possession and effective control on such goods and therefore would fall under the category of deemed sale - demand of service tax set aside - AT
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Business Auxiliary services (BAS) - taxability of amount shown as "other income" in the Profit & Loss Account (P&L A/c) - revenue failed to show that the amount was taxable as BAS - AT
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Refund claim - Unjust enrichment - Chartered Accountant certificate indicates the bifurcation of the amounts towards maintenance charges and operation charges and has specifically certified assessee has not passed on the service tax liability on the operations part to any one and has borne the burden of the service tax - refund allowed - AT
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Liability of service tax - Franchise agreement - Operations, Management and Development Agreement (OMDA) with the AAI - sharing of revenue collection - the transaction between the petitioners and AAI does not constitute a taxable service in terms of section 65 (105 (zze) of the Finance Act, 1994 - AT
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Valuation - erection and commissioning or installation services - the cost of raw material supplied by the service recipient is not includible in the taxable value of service as defined u/s 67 of the Finance Act, 1994 - AT
Central Excise
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Valuation - Denial of SSI exemption - Clubbing of clearance - It is not only that the manufacturing units and trading units are liable to be held as related persons as per Section 4 (3) (b) (iv), they are in effect one single large unit - the duty is required to be determined on the basis of the price on which the trading units have ultimately sold the goods to independent buyers. - AT
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CENVAT credit - receipt of invoices without receipt of inputs - In absence of reasonable explanation on the discrepancy of the entry relating to the particular vehicles mentioned in the invoices adverse inference could be drawn in this regard - AT
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CENVAT credit - inputs - closure of factory - In the instant case, during the period under consideration, the manufacturing process was continuing with the help of job worker as well as in the “Specialized Tankers” - When the excise duty was paid on the final product, then, cenvat credit is permissible - AT
Case Laws:
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GST
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2018 (5) TMI 904
Levy of GST on Service contract with railways - cleaning, sanitation, manpower supply, washing, housekeeping, etc. in Delhi and outside Delhi - pure service contract or works contract - N/N. 9/2017-Integrated Tax (Rate) dated 28.06.2017 - Whether the contract for Railway station sanitation and / or cleaning, Train cleaning & Railway Premises cleaning would be exempt from GST vide S. No. 3 of N/N. 9/2017 - Integrated Tax (Rate) dated 28.06.2017 (as intimated by Northern Railway vide its letter dated 20.11.2017), what would be the impact of GST exemption, if the above contract is pure service contract or work contract (involving sanitation labour and material)? Whether 'pure services' or the same also involve supply of any goods? - Held that: - the cleaning contracts of the applicant with the Northern Railways, which may involve use of consumables such as soap/ detergent/ chemicals of a minimal quantity and of a very nominal value are "pure service" contracts, in terms of S. No. 3 of Notification No. 9/2017 - Integrated Tax (Rate) dated 28.06.2017 as amended by Notification No. 2/2018 - Integrated Tax (Rate) dated 25.01.2018 and parallel CGST and SGST notifications. Whether the service receiver i.e. Northern Railways is covered in 'Central Government' or 'State Government' or 'Union Territory' or 'Local Authority' or a 'Governmental Authority' or a 'Government Entity' or not? - Held that: - as per Section 3(8) of the General Clauses Act, 1897, the 'Central Government' means the President. Therefore, the officers subordinate to him while exercising the executive powers of the Union vested in the President and in the name of President are also covered in 'Central Government'. It is observed that contracts by Northern Railway to the applicant have been awarded in the name of the President of India - Hence, it is held that Northern Railway is covered in the said Notification as 'Central Government'. Whether the cleaning services rendered by the applicant are in relation to any function entrusted to a Municipality under Article 243W of the Constitution? - Held that: - The Railways cannot be called a Municipality under Articles 243P and 243Q of the Constitution of India. Further, the functions of Railways i.e. transport of goods or passengers are not covered in Schedule XII of the Constitution which covers the constitutional functions of Municipalities. The cleaning services supplied to Railways i.e. cleaning of locomotives, railway stations, railway lines provided by the applicant cannot be said to be covered in Clause (6) of Schedule XII of the Constitution which covers 'public health, sanitation conservancy and solid waste management' functions of the Municipalities. The Municipalities are constitutionally entrusted with such functions in relation to urban areas but they are not entrusted with such functions in relation to Railway properties. It is observed that, Northern Railway has informed their sanitation contractors vide No. C-12/San/Misc/2017 dated 20.11.2017 that contracts for station sanitation would be exempt from GST, provided it is a pure service contract and no supply of goods are involved - Since, under Section 103 of the CGST Act, 2017, this ruling is binding only on the applicant and the jurisdictional officers, the Northern Railways is free to contest the same. However, the applicant is required to deposit GST as per this Ruling. Ruling: - The cleaning services supplied by the applicant to the Northern Railways are not exempted under S. No. 3 of the Notification No. 09/2017 - Integrated Tax (Rate) dated 28.06.2017, as amended by Notification No. 2/2018 - Integrated Tax (Rate) dated 25.01.2018 and parallel Notifications of CGST and SGST.
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Income Tax
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2018 (5) TMI 903
Deduction u/s 36(1)(viia) - double deduction - same advances made for all previous years leading to multiple deductions in every assessment year - Tribunal allowed deduction - Held that:- Clauses (a) and (b) in Rule 6ABA cannot be given the restricted interpretation. The amounts of advances as outstanding at the last day of each month would be a fluctuating figure depending on the outstanding as increased or reduced respectively by advances made and repayments received. The assessee might provide for bad and doubtful debts but the deduction would only be allowed at the percentage of aggregate average advance, computation of which is prescribed by Rule 6ABA. We find from the amended direction made by the Tribunal that such direction is in terms of Rule 6ABA. The ITO had made the computation of aggregate monthly advances taking loans and advances made during only the previous year relevant to assessment year 2009-10 as confirmed by CIT(A). The Tribunal amended such direction, in our view, correctly applying the rule. No substantial questions of law
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2018 (5) TMI 902
Unexplained money in the bank accounts of the assessee - addition relying upon the brought forward balance for the subsequent assessment year based on the closing cash on hand of the preceding assessment year - Held that:- Adjudication on the opening cash in the subsequent assessment year would not arise. If the opening cash in hand is to be modified considering the arguments of the Revenue, it would certainly have an impact on the closing cash in hand of the preceding assessment year, which has attained finality. The issue which has reached finality cannot be reopened in the guise of the arguments now advanced by the Revenue. Tribunal rejected the appeals filed by the Revenue. No infirmity or irregularity is found in the order of the Tribunal. Hence, we answer the substantial question of law against the Revenue and in favour of the assessee.
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2018 (5) TMI 901
Reopening of assessment - nature of land sold - undisclosed capital gain - Held that:- To measure the distance from the radius of municipal corporation, the relevant date would be the date of notification and the date of notification is 06.01.1994. It can be safely concluded that if on 26.11.2015 the distance was more than 10 kms as per the certificate of the Tehsildar, it can never be within 8 kms on the date of notification i.e. 06.01.1994. Therefore, the basis for reason to believe that income has escaped assessment is factually incorrect. Since the impugned land was not an asset within the meaning of section 2(14) of the Act, there was no question of showing any capital gain in the return of income. This basis of reopening of the assessment is also invalid, which leads to the quashing of the assessment order. Moreover, the reasons recorded, as mentioned elsewhere, the AO has taken the cost of acquisition at ₹ 1 lakh as on 1.1.1980. We fail to understand under which provisions of the Act the AO has estimated the cost of acquisition of the land as on 1.1.1980. - Decided in favour of assessee.
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2018 (5) TMI 900
TPA - International transaction involving of export of printed circuit boards ('PCBs') by the appellant to its Associated Enterprise (‘AE’) - sale of finished goods by the assessee to its AE [AT & S AG(Europe)] for further sale of the same to individual customers in Europe at the same price and in the same quantity - TPO held that the TNMM method should be applied to determine the ALP of the assessee’s transactions - comparable selection criteria - Held that:- In the assessee’s case under consideration there are independent customers, and the price is fixed by the Principal (Assessee), the product design and specification is decided by the assessee. The Associated Enterprise, the AT & S AG (AE) plays a limited role, that is, it collect the money on behalf of the assessee and remits the same to assessee, for that AE is paid commission. Even commission and warranty expenses are determined and decided by the assessee (Principal). The AT & S AG (AE) does not do any value addition in the goods manufactured by the assessee. Therefore, in this scenario, the stand of the ld DR that CUP Method is not applicable to the assessee, is not acceptable. Tested party - Held that:- The Indian TP regulation per chapter X of the Income Tax Act 1961 is an anti-evasion tool to prevent adverse profit shifts. The materiality of examination of the International Transactions has to be in this light. Therefore, the testing has to be done in order to examine if the Indian entity is offering its profits to lawful taxation in India. In order to determine the correct profits by ascertaining correct ALP, the transactions have to be examined by keeping the Indian entity in primary focus. Therefore, keeping the AE as a tested party would fundamentally defeat the basic purpose of the TP regulations. In the facts and circumstances of the case, the assessee Indian Company is justified to be taken as the tested party. TPA addition to be deleted. International transactions involving payments made by the assessee in respect of purchase, order handling services and sales services - Held that:- at exercise off actual verification would be left to the AO under section 37 of the Act. The AO could, therefore, determine under Section 37 of the Act that the expenditure claimed was not for the benefit of the business, and thus, disallow that amount. This does not restrict or in any way bypass the functions of the TPO. The jurisdiction of the TPO is specific and limited i. e. to determine the arm's length price of an international transaction in terms of Chapter X of the Act read with Rule 10A to 10E of the lncome Tax Rules. Therefore, we are of the view that the assessee has derived benefits from these services as per CCA agreement and hence the arguments advanced by the ld DR for the Revenue is not acceptable. Hence, we direct the AO/TPO to delete the arm’s length price adjustment in respect of the international transactions involving payments made by the assessee in respect of purchase, order handling services and sales services.
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2018 (5) TMI 899
Addition u/s 40A(3) - payments of expenditure in cash exceeding permeable limits - as argued that the payments to statutory bodies do not attract the provisions of section 40A(3) and the payments were made in cash as per the demand of BSNL - proof of business expediency - Held that:- As payments made to BSNL were not doubted by the Revenue and it is proved that BSNL is a State within Article 12 of the Constitution of India and moreover as per Demand Note issued by BSNL, payments were made in cash for the business expediency of the assessee and as per requirement specified by BSNL. Under these circumstances, even if the assessee does not fall in any of the clause of Rule 6DD, invoking the provisions of section 40A(3) can be dispensed with. In view of the above discussion, we set aside the order of the ld. CIT(A) and delete the addition made under section 40A(3) of the Act. - Decided in favour of assessee.
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2018 (5) TMI 898
Penalty u/s 271(1)(c) - expenditure claimed in relation to development of basic designs for its train control systems as Revenue outgo - Held that:- Assessing Officer has clearly specified in para 3.1 of the assessment order that the expenditure resulted in intangible assets. It may be true the intangible asset might have been eligible for depreciation only at the rate of 25% if it was considered in the same class as of patents. However, we cannot say that any inaccurate particulars were filed by the assessee. Assessee had also given reasonable explanation for its failure to produce the bills in support of its explanation. Inability to produce the bills in support of expenditure would not by itself mean that claim was not an unlawful one. There is no adverse comment of the Statutory Auditors of the assessee company, pointed out by AO. Just because assessee preferred a claim which was not found acceptable by the AO, would not mean that claim was not a bonafide or was based on inaccurate particulars. CIT (Appeals) in our opinion had rightly relied on the judgment of Hon’ble Apex Court judgment in the case of Reliance Petro Products Ltd (2010 (3) TMI 80 - SUPREME COURT ) - Decided in favour of assessee.
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2018 (5) TMI 897
Reopening of assesseemnt u/s 147/148 - assessment order passed against assessee-company, which did not exist on account of its merger with another company - Held that:- There may be amalgamation either by the transfer of two or more undertakings to a new Company, or by the transfer of one or more undertakings to an existing Company. The amalgamation does not cover the mere acquisition by a Company of the share capital of other Company which remains in existence and continues its undertaking but the context in which the term is used may show that it is intended to include such an acquisition. In the present case it is seen that M/s Chandak Housing Pvt. Ltd. has amalgamated with M/s Chandak Builders & Developers Pvt. Ltd. w.e.f. 1/4/2012 by the direction of the Hon'ble jurisdictional High Court vide order dated 6/11/2012. Once the company is amalgamated with another company, it loses its existence from the effective date and the Assessing Officer cannot take action under section 147/148 in the case of the assessee being non-existent from the effective date and further no consequential assessment can be made under section 143(3) of the Act. No infirmity with the findings of the CIT(A) and the order of the ld. CIT(A) declaring the action taken by the Department under section 147/148/143(3) of the Act as void ab-initio, is sustained. - Decided against revenue
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2018 (5) TMI 896
Royalty - amount payable towards purchase of advertisement space - whether payment made by the Appellant to Google Ireland Limited in relation to purchase of advertisement space for resale to the advertisers in India under the Google AdWords Reseller Agreement ? - ‘lndia-lreland Treaty - right to use of Trademark - TDS u/s 195 - Held that:- Considering the AdWord Distributor Agreement and the Service Agreement together and we find that under these agreements assessee was licenced to use the trade marks, IPRs, brand features, derivative workss and other intangibles etc, though it may not be transferred in favour of the appellant.Therefore the consideration paid by the assessee is on account of usage of all these intangibles in order to provide better services to the GIL or to the advertisers is certainly in the nature of payment of royalty and is chargeable to tax under section 9(1)(vi) of the Act and under article 12 of the DTAA. Since the assessee has not deducted the tax at source as per provisions of section 195 of the Act, assessee was rightly held to be in default under section 201(1) of the Act. We therefore confirm the order of the CIT(A) upholding the ordert of the AO passed under section 201(1) and 201(1A) of the Act in this regard. Beneficial owner of the royalty received - whether GIL is the beneficial owner of the payment received in the form of royalty? - Held that:- From a reading of this agreement, it is not clear as to how much revenue is shared by different holdings. In the absence of the relevant evidence either in the form of agreement executed between the various holding companies or otherwise, it is not clear as to whether the GIL has full control over the receipt received under Google AdWord Program or the GIL was acting as a conduit of its parent holdings. We therefore are of the view that this aspect requires a fresh look by the AO in the light of all the relevant evidences. We accordingly restore the matter to the AO after setting aside the order of the CIT(A) in this regard in all these appeals to readjudicate the issue of beneficial ownership in the light of the license agreements executed between the parent holdings of the GIL. We direct the appellant to extend all sort of cooperation by producing the agreement executed between the various parent holdings of the GIL. Thus the matter is restored to the file of the AO to readjudicate the issue of beneficial ownership Rejection of books of accounts - Held that:- AO has not pointed out the specific defect in maintenance of books of accounts. Moreover, after recasting the profit and loss account, there was no change in the profit originally reported by the assessee in its financial statements. It is also noticed that assessee has been following the same method of accounting in earlier years but it was never rejected by the AO. We also find force in the contention of the learned Counsel for the assessee that the lower authorities have not identified the accounting standards that has to be followed by the assessees. In the light of these facts, we are of the considered opinion that rejection of the books of accounts by the AO is not proper Application of section 10A - Held that:- We find that AO has accepted the claim of deduction under section 10A of the Act and he has not raised any dispute with regard to amount received by the assessee from Google Ireland for rendering services in India to the advertisers which was claimed as export proceeds under section 10A - It is also a settled position of law that at the second appellate stage, the Revenue cannot improve upon the case made out by the AO. There are various provisions under the Income Tax Act where the Revenue can rectify its mistakes but before the Tribunal no additional grounds can be raised which was not a subject matter of appeal or dispute before the lower authorities. The Tribunal, being a second appellate authority, is supposed to adjudicate those issues which were raised before it and also was of subject matter of dispute before the lower authorities. The Revenue cannot improve upon its case. Therefore, we are of the view that additional grounds raised by the Revenue are not admissible Computation of deduction under section 10A - Held that:- Matter to be decided relying on jurisdictional High Court case of CIT Vs. Tata Elxsi Ltd[2011 (8) TMI 782 - KARNATAKA HIGH COURT] to exclude reimbursement of expenditure incurred in foreign currency both from export turnover as well as total turnover. Reopening of assessment - assessee contented reopening on no forming a belief that income chargeable to tax has escaped the assessment and notice under section 143(2) was not issued within the prescribed period - Held that:- Notice under section 143(2) was issued in time. Moreover, we do not find any procedure either in the Act or in Income Tax Rules wherein it has been laid down that after issuance of notice under section 148, the returns are to be filed and thereafter assessee has to seek the reasons recorded for reopening of the assessment and thereafter file the objection thereto. After disposal of the objections the AO can only issue the notice under section 143(2) of the Act. For completing the assessment under section 147 the procedure laid down under section 143 is to be followed. Nowhere it has been mentioned either under section 143 or under section 147 that the notice under section 143(2) cannot be issued before disposing of the objections filed by the assessee against the reasons recorded for reopening the assessment. No merit in the contention of the assessee that the notice under section 143(2) is bad in law. Revenue has assessed the appellant on business profit received by it after treating the GIPL as its Permanent Establishment in India - PE in India - Held that:- Revenue has wrongly assessed the GIL for business profit received by it under AdWord Distribution Agreement. During the course of hearing, the learned Standing Counsel has candidly admitted that now the Revenue’s stand is very clear that the payment made by the GIPL to GIL is in the nature of royalty and not the business profit received by the GIL. Therefore, we are of the considered opinion that assessment of business profit in the hands of GIL after treating the GIPL as Permanent Establishment of the GIL is not proper. Even if the royalty is to be paid by the GIPL to GIL the tax is to deducted on its payment and benefit of the same will be given to GIL while completing the assessment in its hands. Therefore, we set aside the order of CIT(A) and restore the matter to the AO with a direction to reframe the assessment TPA - MAM selection - selection of comparable - TPO had rejected the TP study report submitted by the assessee-company on the ground that there was no separate FAR analysis of each function performed with AEs - Held that:-From perusal of TPO order it is clear that the TPO made TP analysis without referring to any evidence or actual conduct of the parties. Thus, neither the assessee-company nor the TPO had approached the issue in proper perspective and therefore in the absence of proper TP analysis in proper perspective, the comparability of international transaction cannot be judged. Therefore, in fitness of things, we remand the entire TP issues to the file of the TPO/AO for undertaking the exercise of TP analysis afresh after affording opportunity to the assessee-company to furnish TP study report covering the entire functions performed, assets employed and risks undertaken transaction-wise in respect of international transaction with AE. After the TP analysis on the above lines, the TPO shall aggregate the functions which has a direct nexus with core business activity i.e. AdWords distribution programme. As held in the appeal against order passed u/s 201(1) that the activities under ITeS services are integral part of AdWords distribution programme. Further the TPO shall examine whether the functions of the assessee-company resulted in creation of intangibles i.e. marketing intangibles or technological intangibles. Whether these intangibles so created are owned and used by the assessee-company itself or transferred to any other entity and whether the assessee-company is properly compensated for transferring such intangibles. The findings of the TPO shall be based on the actual conduct of the parties and evidence produced by the assessee-company. The comparability of all these independent transactions shall be judged with reference to uncontrolled similar transaction by adopting most appropriate method and comparability factors. In respect of transactions aggregated with AdWords business transaction, the TPO shall bench-mark the transaction by adopting Profit Split Method as most appropriate method, as the transaction of business of AdWords programme requires deployment of assets and functions of different entities located in different geographical locations in order to ultimately deliver services as the combined effort generate revenues. It is also settled proposition of law that Profit Slip Method (PSM) can be adopted as most appropriate method in cases involving multiple interrelated international transactions which cannot be evaluated separately.us, all the grounds of appeal relating to TP adjustment are set aside to the file of the AO/TPO for de novo assessment after affording due opportunity of being heard. TDS u/s 195 - payment made to Google Ireland by the assessee company on account of distribution fees paid to it on the ground that no tax was deducted at source - bonafide belief - Held that:- assessee considering the fact that payee has already paid the tax and nearly for a period of decade both revenue and the assessee proceeded on a footing that provisions of section 194J was not applicable to the payment of transaction charges. It is also pertinent to note that the provisions of section 40(a)(ia) starts with non obstante clause. A non- obstante clause is usually used in a provision to indicate that the provision should prevail despite anything to the contrary in the mentioned in such non-obstante clause. In case there is any inconsistency or a departure between the non-obstante clause and another provision, one of the objects of such a clause is to indicate that it is the non-obstante clause which would prevail over teh other clause [see CIT vs. Navabharat Enterprises (P) Ltd. (1987 (1) TMI 26 - ANDHRA PRADESH High Court). Therefore, the plea of bona fide belief has no place in the non-obstante provisions of the Act. Addition made on account of attribution of profits to Google Ireland Ltd. - direction of the Hon'ble DRP to delete addition - Held that:- As in the case of Director of Income-tax (International Taxation) v. Morgan Stanley &Co.(2007 (7) TMI 201 - SUPREME Court) held that once the TP analysis undertaken, there is no further need to attribute profit to PE but added a rider that a situation would be different if TP analysis does not adequately reflect the functions performed and risks assumed by the enterprise. In such a situation there would be a need to attribute profit to PE for those functions and risks that have not been considered. In the assessee’s appeal, since we have restored TP analysis afresh to the file of AO/TPO, this issue also is set aside to the file of the AO to make de novo assessment
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Customs
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2018 (5) TMI 895
Refund claim - finalisation of provisional assessments - unjust enrichment - Held that: - Larger Bench of the Tribunal in the case of Hindustan Zinc Limited [2009 (2) TMI 100 - CESTAT AHMEDABAD] held that the doctrine of unjust enrichment will not apply to the provisional assessment ordered prior to 13.07.2006 and any refund arising out of such provisional assessment being finalised subsequently, has to be refunded to the importers - refund allowed - appeal allowed - decided in favor of appellant.
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2018 (5) TMI 894
Classification of imported goods - import of certain equipments for the purpose of testing telecommunication networks - classified under CETH 90308990 or under CETH 90304000 - whether the items under import are specially designed testing equipments for telecommunications? - Held that: - such testing tools are Capable of use for telecommunications as well as other applications such as LAN Network. LAN Network is essentially a system of inter-communication of computers in a given office. They are commonly understood as a computer network and are not described as telecommunication network - appeal dismissed - decided against appellant.
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2018 (5) TMI 893
Revocation of CHA License - forfeiture of security deposit - violations of Regulation 11(a), (b) and (d) of the CBLR - Held that: - for violation of CBLR, 2013 which stands established during the enquiry proceedings, the revocation of the Customs Broker Licence is too harsh a punishment and hence, revocation is set aside - the forfeiture of the security deposit as well as penalty of ₹ 50,000/- imposed by the adjudicating authority upheld - appeal allowed in part.
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2018 (5) TMI 892
Redemption fine - Smuggling - fake currency - case of appellant is that they had no mens rea and has no knowledge of the fact that the carton contained fake currency - Held that: - the brother of the appellant who was driving the vehicle at the relevant time was exonerated by the Criminal Court and there is a clear-cut finding of the Court in favor the brother of the appellant that he did not have any knowledge of the contents of the carton, the penalty was also dropped against him on the same grounds. As far as appellant is concerned, there is no fault of the appellant at all in the present case and his brother has also been exonerated by the Court and the Tribunal and therefore, the redemption fine imposed on the appellant is not sustainable in law - appeal allowed - decided in favor of appellant.
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Service Tax
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2018 (5) TMI 891
Liability of service tax - market fees or mandi shulk - lease amount - appellant charged market fee for issuing licence to traders, agents, factory/cold storage owners or other buyers of other agricultural produce - the decision in the case of M/s. Krishi Upaj Mandi Samiti And Others Versus CCE ST, Jaipur I Jaipur II [2017 (5) TMI 1465 - CESTAT NEW DELHI] contested - Held that: - Delay condoned - Leave granted - Tag with Civil Appeal No.1482/2018.
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2018 (5) TMI 890
Refund claim - Section 102 of the Finance Act, 2016 - exemption was restored by incorporation of Section 102 under the Finance Act, for which the appellant filed refund claim - Time limitation - applicability of Section 11B of the Central Excise Act, 1944 - Works Contract Service - benefit of N/N. 25/2012-ST dated 20/06/2012. Held that: - The retrospective exemption having been granted by the legislative, there was a clause for refund of the tax paid during the intervening period subject to the condition that such refund claim are filed within the period of six months. Admittedly, the refund stands filed beyond the said period, thus, contravening the condition - There is no power with the Central Excise Authorities to legislate or to travel beyond the statutory limitations provided by the legislature. Similarly, neither the Tribunal has such powers to go beyond the provisions of the Act. Reference can be made to Hon’ble Supreme Court decision in the case of Porcelain Electrical Mfg. Co. vs. CCE, New Delhi [1994 (11) TMI 145 - SUPREME COURT OF INDIA], wherein it was observed that the refund claim filed before departmental authorities are to be governed by the time limit provided under the statute and the general law of limitation invoked by various High Courts under their extra-ordinary jurisdiction is inapplicable to the cases where the refund obligations has been moved before the Revenue authorities. Appeal dismissed - decided against appellant.
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2018 (5) TMI 889
Construction of houses and residential premises with different land owners, in respect of one joint development agreement - Revenue has demanded service tax from appellant on the ground that it was not paid correctly on the villas which were constructed by appellant for land owner, as a part of compliance of the agreement entered with the land owners - extended period of limitation - Held that: - It is undisputed that appellant has provided construction services to the land owner and as a consideration, received legal rights on his share of land, constructed Villas on that land and sold them, which would mean that appellant is investing the consideration received from first transaction of land owners right to construct in second transaction - merely because the consideration received from land owners is invested in construction of villas to other buyers on which service tax is paid, it cannot be concluded that service tax paid on consideration received from land owners has to be evaluated differently. Service tax is liable to be paid on gross amount charged i.e. to say consideration received from land owners in kind and consideration received from prospective customers i.e. total gross amount. In the case in hand, the amount attributable to the consideration received by appellant in the form of land rights from the land owner stands included in the value of villas sold to prospective customer which would mean that whatever consideration was received by the appellant in form of developmental right was considered in assessable value. CBEC vide circular dated 16.02.2006 in respect of collection of service tax under construction of complex services had issued instructions under section 57 (B) of Central Excise Act, 1944 which are made applicable to service tax under section 83 of Finance Act, 1994 - it was held that the gross amount charged by the builder is liable to tax - it is evident that appellant has complied the service tax liability on the construction undertaken on joint development basis on the value of construction which is mandated in Section 67 of Finance Act, 1994, read with rules made thereunder. In our view, if once the service tax liability has been discharged on the gross amount, demand of service tax on the same amount again would amount to double taxation. Extended period of limitation - Held that: - it cannot be held that there was a malafide intention on the part of the appellant to suppress any facts or make mis-statements, with an intention to evade service tax liability - demands are also hit by limitation and extended period cannot be invoked for the demands received. Demand is not sustainable on merits as well as on limitation - appeal allowed - decided in
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2018 (5) TMI 888
Rate of tax - relevant date - works contract services - Composition scheme - the respondents had received an amount of ₹ 3,23,23,005/- after 01.03.2008, they had discharged service tax on the said amount only @2%. The department was of the view that such amount was received by the respondents after 01.03.2008 and hence they are liable to pay service tax on this amount @ 4% and not 2%. Held that: - During the disputed period the taxable event for discharging service tax was rendition of services - The issue has been considered by the Hon’ble High Court of Delhi in the case of Vistar Construction Pvt. Ltd. [2013 (2) TMI 52 - DELHI HIGH COURT], where it was held that the rate of tax applicable on the date on which the services were rendered would be the one that would be relevant and not the rate of tax on the date on which payments were received. The demand cannot sustain - appeal dismissed - decided against Revenue.
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2018 (5) TMI 887
Nature of activity - deemed sale or service? - Supply of Tangible Goods - appellants are engaged in supply, installation and operation of digital camera equipment having Qube digital technology to various theatre owners on ‘right to use’ basis through an agreement entered with the parties - Department was of the view that the supply of digital camera equipment on higher basis to theatre owners would fall within the definition of service as under Section 65 B (44) of the Act, and the nature of the said service as defined under Section 66 E (f) of the Finance Act, 1994 is liable to levy of service tax. Held that: - The sub-clause (f) of Section 66 E (declared services) refers to transfer of goods by way of hiring, leasing, licensing or in any such manner without transfer of right to use such goods - in the present case the supply of goods involves transfer of right of possession and effective control on such goods and therefore would fall under the category of deemed sale. The activity does not fall within the definition of service under the Finance Act, 1994 as amended in 2012. Appeal allowed - decided in favor of appellant.
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2018 (5) TMI 886
Business Auxiliary services (BAS) - taxability of amount shown as "other income" in the Profit & Loss Account (P&L A/c) - whether the "other income" shown by the appellant was taxable under the category of “Business Auxiliary Services” or “Transportation of Goods Services”? - extended period of limitation. Held that: - Admittedly, Revenue has not shown any detailed evidences to reflect upon the fact that the said "other income" was taxable under the category of “Business Auxiliary Services”. There is nothing on record to show that the appellant has provided the services under the said category. Merely because the appellant agree to pay Service Tax under the said category would not be reflecting of the fact that the said "other income" was on account of services provided by the appellant under the said category. In the absence of any evidence to substantiate the stand of the Revenue that the said „other income‟ was on account of services proved under the category of "Business Auxiliary", the appellant stand of the "other income" having been arisen on account of the Transportation Activities has to be accepted in which case the appellant would be entitled to Cenvat credit of the same. Extended period of limitation - Held that: - The credit was availed by reflecting the same in the Cenvat credit account, in which case it cannot be said that there was any mala-fide suppression on the part of the appellant - demand raised by invoking the longer period of limitation is not sustainable. Appeal allowed - decided in favor of appellant.
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2018 (5) TMI 885
Condonation of delay of 35 days in filing appeal - case of appellant is that the company being closed, application for condonation of delay be allowed - Held that: - It is seen from the records and as correctly pointed out by both sides, out of turn hearing of Early Hearing application was made by the Revenue and allowed. Be that as it may, the delay of 35 days in filing the appeal, though explained, reasons given for delay in filling the appeal seems to be unconvincing. Identical issue decided in the case of Collector, Land Acquisition Versus Mst. Katiji And Others [1987 (2) TMI 61 - SUPREME Court], where it was held that no pedantic approach should be made directing the parties to explain every day delay and that the doctrine must be applied in a rational common sense pragmatic manner. Delay in filing the appeal before the Tribunal is more than 30 days and explanation being sketchy, appellant needs to be put to condition of imposing cost for hearing of appeal on merits.
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2018 (5) TMI 884
Classification and demand of the various service activities of the assessee M/s Hetero Drugs Ltd. - Held that: - this is a composite order the amount of service tax liability confirmed being substantial, we allow the application for Early Hearing of the appeal and direct the registry to take the appeal on record and may be list on 04.06.2018.
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2018 (5) TMI 883
Refund claim - Unjust enrichment - time limitation - whether the refund claims filed by them are hit by limitation or otherwise? - Held that: - service tax liability on the operations portion is not due to the Government, which would mean that provisions of Section 11B of Central Excise Act, 1944 which lays down the period within which refund claim has to be filed, will not apply to the cases in hand - the question of limitation does not arise in the cases in hand. Unjust enrichment - Held that: - the appellant had produced detailed Chartered Accountant certificate, which indicates the bifurcation of the amounts towards maintenance charges and operation charges and has specifically certified that GMR Energy Vemagiri Power Generation Limited has not passed on the service tax liability on the operations part to any one and has borne the burden of the service tax. The certificate which was produced before the lower authorities is also produced before the Tribunal and on perusal of the same, it is found that the said certificate clearly indicates the details on the basis of which the Chartered Accountant has come to a conclusion the amount for which refund claim is preferred, is borne by appellant assessee - decided in favor of assessee. Appeal allowed - decided in favor of assessee.
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2018 (5) TMI 882
Application for early hearing - Held that: - Since both sides have no objection for early hearing, we allow the application for early hearing for the appeal and direct the Registry to register this appeal along with other appeals as were listed on 31.01.2018 - early hearing application allowed.
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2018 (5) TMI 881
Review order - Department entertained a view that the respondent has suppressed the value of the taxable services which resulted in short payment / escapement of service tax - Held that: - Since in the assessee’s appeal, the review order has already been examined and it has been held that there is no merit in the, impugned order and the Tribunal has allowed the appeal of the assessee by setting aside the impugned order - the revision order merged in the order of the Tribunal in the assessee's appeal and therefore we do not find any merit in the appeal of the Revenue - appeal dismissed - decided against Revenue.
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2018 (5) TMI 880
Liability of service tax - Franchise agreement - Operations, Management and Development Agreement (OMDA) with the AAI - sharing of revenue collection - Held that: - the identical issue has come up before the Tribunal in assessee’s own case M/s. Airport Authority of India Versus Commissioner of Service Tax (Adjn) [2018 (2) TMI 1565 - CESTAT NEW DELHI], where it was held that OMDA does not constitute a franchise in terms of Section 65 (47) of the Finance Act and the transaction between the petitioners and AAI does not constitute a taxable service in terms of section 65 (105 (zze) of the Finance Act, 1994 - appeal allowed - decided in favor of appellant.
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2018 (5) TMI 879
Renting of immovable propriety service - appellant is a Nagar Palika Nigam, Katni which has let out some shops and commercial properties on lease rent - whether the service tax was chargeable on the lease rent under the category of “ Renting of Immovable Property” or not? - Held that: - the chargeability of service tax on immovable property was the subject matter of serious dispute and the Hon’ble Delhi High Court had reversed its own decision in the case of Home Solutions Retails (India) Ltd. Vs. Union of India [2011 (9) TMI 46 - DELHI HIGH COURT] in 2012 - The legal development also necessitated the retrospective amendment in Finance Act, 1994, which was carried out in Finance Act, 2010. The service tax liability cannot be fastened on the appellant for the extended period of 5 years - Further, the appellant being a local authority cannot be held guilty of the charge of mala fide intention to evade payment of service tax. Demand for normal period upheld - penalty set aside - matter is remanded to the adjudicating authority for requantification of the matter - appeal allowed in part by way of remand.
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2018 (5) TMI 878
Valuation - erection and commissioning or installation services - inclusion of the cost of material (structural sheet, pipe, plates, bolts, nuts, inserts, red oxide, free supply of water and electricity) supplied by the service recipient in the taxable value of service - Held that: - the respondent-assessee have not sold any fabricated material to the service recipient. Therefore, the question of sale of the plant, machinery, equipment, parts and any other material as prescribed in the notification does not arise and hence, no value in the gross amount charged is includible, which is also evident from the contract in which it has been specifically provided that the raw material is being supplied free of cost, on job work basis - the cost of raw material supplied by the service recipient is not includible in the taxable value of service as defined under Section 67 of the Finance Act, 1994 - appeal dismissed - decided against Revenue.
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2018 (5) TMI 877
Validity of SCN - Penalty - evasion of payment of service tax - Held that: - the SCN for different period indicated the total value of different service tax and value thereon. It indicates various services provided by the appellant but has not specified the bifurcation of the total demand under various services. This lacuna which is very evident from the SCN - matter remanded for fresh consideration - appeal allowed by way of remand.
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2018 (5) TMI 876
GTA service - Benefit of abatement of 75% under N/N. 32/2004-ST dated 03.12.2004 - denial on the ground that all the relevant LRs/consignment notes had not been scrutinized by him but the scrutiny was on sample basis - whether the respondents are entitled to the benefit of N/N. 32/2004-ST dated 03.12.2004 and N/N. 1/2006-ST dated 1.3.2006? - Held that: - the appellants have submitted that they have followed the prescribed procedure in as much as the required declaration in terms of the Board's circular is there on the LR/consignment notes and sample copies of the same were put before the lower authority - However, the adjudicating authority chose to ignore the same and did not discuss the same in his findings - appeal dismissed - decided against Revenue.
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2018 (5) TMI 875
Liability of service tax - Passenger Service Fees (PSF) and other taxes (international taxes) collected by the airlines as part of consideration when the tickets are issued to the passengers - Held that: - an identical issue has come up for consideration before the Tribunal in the case of M/s Royal Jordanian Airlines & Ors. Vs CST, Delhi [2017 (11) TMI 1407 - CESTAT NEW DELHI], where it was held against the inclusion of these charges in the taxable value for air travel service by the appellants - appeal allowed - decided in favor of appellant-assessee.
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Central Excise
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2018 (5) TMI 874
SSI Exemption - clubbing of value of clearances of four other manufacturing units - N/N. 8/2003-CE dated 01/03/2003 - Held that: - the facts of the case justifies the removal of the corporate veil in respect of all the units in this case. This reveals that all the units are having dejure separate existence but defacto existence of that of a single unit. SBTPL was the original unit started by Shri Mahendra Bohra and the same is to the defacto unit comprising all the units - the clearances of all the manufacturing units will need to be clubbed and the benefit of duty free clearance under N/N. 8/2003 is to be allowed to SBDTPL only - SSI benefit rightly denied. Valuation - adoption of selling price of the trading units as assessable value - It has been argued that the trading units are not “related” with any of the manufacturing units in terms of Section 4 (3) (b) of the Central Excise Act, 1944 - Held that: - all the manufacturing as well as trading units had only nominal existence but effectively were not independent but related. Since Shri Mahendra Bohra is the one person who has total financial as well as management control of all the units, the transaction values at which the goods are shown as sold from the manufacturing units to the trading units has no sanctity. It is not only that the manufacturing units and trading units are liable to be held as related persons as per Section 4 (3) (b) (iv), they are in effect one single large unit - the duty is required to be determined on the basis of the price on which the trading units have ultimately sold the goods to independent buyers. Similar issue decided in the case of COMMISSIONER OF C. EX., NEW DELHI Versus MODI ALKALIES & CHEMICALS LTD. [2004 (8) TMI 108 - SUPREME COURT OF INDIA]. Appeal dismissed - decided against appellant.
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2018 (5) TMI 873
CENVAT credit - receipt of invoices without receipt of inputs - whether the appellants had correctly availed the CENVAT credit of ₹ 27,49,037/-, against the input invoices issued by two registered dealers namely, M/s Goodluck Empire and M/s Jenil Empire during the relevant period i.e. 2006-07 and 2007-08? Held that: - to avail CENVAT credit on the inputs under CENVAT Credit Rules, 2004, as laid down under Rule 3 of the said Rules, the inputs not only to be duty paid, but also must have been received and utilized in or in relation to the manufacture of final products in the factory premises. In absence of reasonable explanation on the discrepancy of the entry relating to the particular vehicles mentioned in the invoices adverse inference could be drawn in this regard - similar view was expressed in the case of Gyscoal Alloys Ltd. vs CCE Ahmedabad-III [2014 (2) TMI 449 - GUJARAT HIGH COURT]. The Revenue has discharged its burden when it claimed that goods had not been received in the factory by pointing out the discrepancy in the input invoice, that is, wrong entry of vehicle number, now it is the turn of the Appellant to explain the discrepancy to establish the fact that the quantity of inputs mentioned in the invoices have been received in the factory and utilized in the manufacture of finished goods by adducing positive evidence - the quantity of inputs mentioned in the 58 invoices involving a total credit of ₹ 18,26,413/- had not been received in the factory and the credit was availed only on the input invoices - demand with interest and penalty upheld. Credit of ₹ 9,21,624/- availed against 27 invoices - Held that: - Except few statements of vehicle owners/representatives, the competence of the said persons to furnish such statement also being in dispute, and in absence of other corroborative evidence placed by the Revenue, to substantiate the allegation that the quantity of inputs mentioned in the invoices, where the capability of the vehicle mentioned in these invoices are not disputed, it is difficult to sustain the allegation of non receipt of the inputs against these set of input invoices - credit allowed - demand with interest and penalty set aside. Personal penalty imposed on other appellants - Held that: - they have actively participated/involved in the issuance of invoices, without movement of inputs, and some of the period involved is also after 01.3.2007, accordingly, liable for penalty u/r 26(2) of CER 2002 - quantum of penalty not reduced. Appeal allowed in part.
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2018 (5) TMI 872
CENVAT credit - denial for the reason that the goods on which credit were availed were not put to any manufacturing process neither directly or incidentally to the manufacture of the product and they were virtually cleared as such after drying etc. - Held that: - in any case, the duty paid on cleared goods being higher than the credits, now alleged to be ineligible by the department cannot be a ground to deny the credit when the appellants have paid duty on the finished products - demand cannot sustain - appeal allowed - decided in favor of appellant.
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2018 (5) TMI 871
CENVAT credit - inputs - closure of factory - It is the allegation of the Department that during the period from April, 2012 to November, 2013 ; April, 2014 to February, 2015, the factory was closed, but the appellant has claimed the cenvat credit on the inputs, which was denied by the Department. Held that: - In the instant case, during the period under consideration, the manufacturing process was continuing with the help of job worker as well as in the “Specialized Tankers”. The raw material, after the payment of duty, was supplied to the job worker. The raw material supplied to the job worker, M/s HCIL or other reputed companies, were received back by them in “Specialized Tanker”. When the excise duty was paid on the final product, then, cenvat credit is permissible - the essential ingredients for availment of cenvat credit are the discharge of duty liability by the appellants. Appeal allowed - decided in favor of appellant.
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2018 (5) TMI 870
Penalty u/r 15 (1) of CENVAT credit rules - credit reversed alongwith interest - Held that: - since the entire amount has been reversed along with interest before issuance of Show Cause Notice, provisions of Section 11A (2B) of CEA 1944 would get attracted - penalty set aside - appeal allowed - decided in favor of appellant.
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2018 (5) TMI 869
Liability of interest and penalty - CENVAT credit attributable to the inputs which were for other purposes than manufacture reversed - Held that: - Hon’ble High Court of Andhra Pradesh in the case of Bharat Dynamics Limited [2015 (12) TMI 808 - ANDHRA PRADESH HIGH COURT] will cover the issue in favour of the appellants herein, in respect of interest, where it was held that interest need not be charged only for the purpose of taken the CENVAT credit - interest set aside. Penalty u/r 15 of the CCR 2004 - Held that: - the said rules cannot be invoked on the facts of this case as appellant themselves have reversed the CENVAT credit availed by them on the inputs which were used for other purposes - penalty set aside. Appeal allowed - decided in favor of appellant.
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2018 (5) TMI 868
Clandestine removal - Revenue entertained a view that 59.20 MT of MS Billets were in excess then recorded balance. Similarly, 25.18 MT of CI scrap was unaccounted in the statutory record - Held that: - apart of the fact that the weighment were not done physically in respect of entire stock, inasmuch as there are no inventory available but as per recording in the SCN, the stock taking was done by undertaking weight of one billet and then multiplying it with number of billets available in the factory, there is virtually no evidence to indicate that the same are meant for clandestine removal - the raw material cannot be seized and confiscated as per the settled law - there is no justification for imposition of penalties - appeal allowed - decided in favor of appellant.
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2018 (5) TMI 867
CENVAT credit - duty paying invoices - it was alleged that invoices are not in the name of assessee and his name appears only as ‘care of’ - Held that: - M/s. Sepco Electric Power Construction Corporation is job worker who is working at the appellants project site. This fact is also clear from the fact that address of the consignee has been shown as Balco Site. The invoices which already stand allowed by the adjudicating authority also showed the address of Balco Site. As such, the rectification of the invoices by consignee in writing the name of the assessee, cannot be faulted upon - It is well settled law that where the goods have actually been utilized, cenvat credit cannot be denied on technical grounds - appeal allowed - decided in favor of appellant.
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2018 (5) TMI 866
Clandestine removal - excesses of stock - Confiscation - penalty - Held that: - apart from the fact that goods were not found entered in the RG 1 register, there is virtually no evidence to indicate that the same were meant for clandestine removal - a part of the goods were found hot than room temperature. This indicate that the same were of recent production and were yet to be entered during the course of day - confiscation and penalty set aside - appeal allowed - decided in favor of appellant.
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2018 (5) TMI 865
Rate on interest on refund claims - Held that: - the rate prescribed under the law is 6%. If that be so, the Tribunal being a creature of Statute, cannot go beyond the rate of interest as prescribed under law - appeal dismissed - decided against appellant.
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2018 (5) TMI 864
Refund of Central Excise duty paid - Board Circular F No. 261/27/3/2006-CX8 dated 14.08.2008 - Held that: - ICRISAT has to satisfy some conditions for refund Central Excise duty paid on petroleum products procured by them. It is not disputed in these appeals that ICRISAT had complied with the conditions in the refund claims filed for as per Board Circular dated 14.08.2008 - respondent herein is eligible for the refund of an amount paid towards Central Excise duty on the fuel consumed by them during the relevant period in question - Appeal dismissed - decided against Revenue.
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2018 (5) TMI 863
Refund of accumulated CENVAT credit - rejection on the ground that the export turnover of third party exports for computing export turnover value for the said quarter should not be considered - Held that: - the goods which were cleared from the factory premises of the appellant were in fact exported - the appellant should submit the Bank Realization Certificate for the exports made through third party - the matter sent back to the adjudicating authority, for a limited purpose of verification of realisation of the goods cleared for exports - appeal allowed by way of remand.
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2018 (5) TMI 862
CENVAT credit - taxable as well as exempt goods - non-maintenance of separate records - Held that: - the provisions of Rule 6(2) would apply only when dutiable and exempted finished goods are manufactured with the same inputs, while in the case in hand, the goods ‘Sulphuric Acid’ is not exempted goods at all when they were manufactured, but when they are cleared, they were cleared under Chapter X of Central Excise (Removable of Goods at Concessional Rate of Duty) - credit allowed - appeal dismissed - decided against Revenue.
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2018 (5) TMI 861
Refund of excess excise duty paid - Held that: - Since identical issue of the appellant is already decided in favor of appellant in 2009, there is no reason to deviate from such a view already taken - appeal dismissed - decided against Revenue.
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2018 (5) TMI 860
100% EOU - CENVAT credit - canteen service - freight service - insurance policy - transportation charges - waster disposal - translation fee - membership subscription - Held that: - as far as canteen services are concerned, the Larger Bench of the Tribunal in the case of Wipro Ltd. [2018 (4) TMI 149 - CESTAT BANGALORE] has held that the outdoor catering service is not eligible for input service credit post-amendment dt. 01/04/2011 vide N/N. 3/2011 dt. 01/03/2011 - the canteen services post 01/04/2011 is disallowed and prior to 01/04/2011 is allowed. Freight charges - Held that: - in the case of export, port is the place of removal and therefore the freight charges fall in the definition of input service and the appellant is eligible for the CENVAT credit - credit allowed. Insurance policy - Held that: - as far as insurance policy of plant and machinery is concerned, the appellant is eligible for the credit - with regard to insurance policies of the employees are concerned after 01/04/2011, it has been specifically excluded from the definition of input service as prescribed in Rule 2(l) of CCR, 2004. Transportation charges - Held that: - since these charges are used for pick up and drop of the employees engaged in the production and therefore, it falls in the definition of input service - credit allowed. Waste disposal - Held that: - waste disposal fall in the definition of input service as it related to business. Therefore appellant is entitled for the CENVAT credit - credit allowed. The appeal is partly allowed but for the purpose of verification of the document, the matter is remanded to the original authority for examining and verifying the documents - appeal allowed in part.
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2018 (5) TMI 859
CENVAT credit - common inputs/input services/capital goods for manufacture of final products as well as trading - non-maintenance of separate records - Held that: - the appellant is a manufacturer and he has cleared some inputs as such by reversing the cenvat credit taken by them originally on the said input and therefore, activity is covered by Rule 3(5) of Cenvat Credit Rules - Revenue has also not been able to establish that appellant is a trader and is engaged in trading activities - appeal allowed - decided in favor of appellant.
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