TMI Tax Updates - e-Newsletter
May 9, 2018

Case Laws in this Newsletter:

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

TMI SMS

• Supply of food on board the trains - GST shall be charged at applicable rates as pure supply of goods - It has no element of service.

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• GST - Work Books (49.01) or Exercise Book (48) - presence of printed text does not affect the classification under 48.20 as exercise books

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Articles

1. CASE LAWS RELATING TO E-WAY BILL

   By: DR.MARIAPPAN GOVINDARAJAN

2. Waiver of loan is not taxable u.s. 28 (iv) or S. 41.1 as held by the honourable Supreme Court- an analysis and updates on related issues

   By: DEVKUMAR KOTHARI

News

1. CIM addresses First Inter-Ministerial meeting on Sectoral Export Promotion Strategy

2. Government Committed to get Access to Indian Pharma in Key Markets: Suresh Prabhu

3. CriSidEx Jan-March 2018 readings show Micro and Small Enterprises (MSEs) confidence largely intact; MSEs remain upbeat on growth prospects ​;​Sentiment expected to continue through April-June 2018​ as well.​

4. RBI Reference Rate for US $

Notifications

Companies Law

1. File No. 1/21/2013-CL-V - dated 7-5-2018 - Co. Law

Companies (Prospectus and Allotment of Securities) Amendment Rules, 2018

2. F.No. 1/1/2018-CL.I - dated 7-5-2018 - Co. Law

Central Government appoints the 07th May, 2018 as the date on which the provisions of the Companies (Amendment) Act, 2017 shall come into force

3. F. No. 1/32/2013 -CL-V-Part - dated 7-5-2018 - Co. Law

Companies (Meetings of Board and its Powers) Amendment Rules, 2018

4. F. No. 1/22/2013-CL.V-Part-III - dated 7-5-2018 - Co. Law

Companies (Appointment and Qualification of Directors) Second Amendment Rules, 2018

5. F. No. 1/ 33/2013.CL-V (Part) - dated 7-5-2018 - Co. Law

Companies (Audit and Auditors) Amendment Rules, 2018

6. F. No. 01/16/2013 CL-V (Pt-l) - dated 7-5-2018 - Co. Law

Companies (Registration Offices and Fees) Second Amendment Rules, 2018

7. F. No. 01/13/2013 CL-V (Pt-l - dated 7-5-2018 - Co. Law

Companies (Specification of Definitions Details) Amendment Rules, 2018

Customs

8. 24/2018 - dated 7-5-2018 - ADD

Seeks to provide for provisional assessment of jute goods exported from Bangladesh by M/s Roman Jute Mills Ltd.(Producer/Exporter) and M/s SMP International, LLC, USA (Exporter/Trader) till the final findings of New Shipper Review in this regard are recieved

DGFT

9. 07/2015-2020 - dated 8-5-2018 - FTP

Insertion of a new Policy condition under Chapter 87 of ITC (HS), 2017 - Schedule - I (Import Policy)

VAT - Delhi

10. F. No. DTT-2018-W-13/MAY/112-116 - dated 4-5-2018 - DVAT

Notified for general information that the Declaration Forms “C” are declared to be obsolete and invalid for all purposes with immediate effect

Highlights / Catch Notes

GST

• Newspapers Supplied on Trains Exempt from GST Under Notification No. 2/2017, S. No. 120.

  Case-Laws - AAR : Supply of newspaper on board the trains - The supply of newspaper is separately invoiced and hence it shall be at 'Nil” GST under S. No. 120 of Notification No. 2/2017 - AAR
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• GST on Train Food & Water: Charge Based on Goods' Value Only, Exclude Service Charges, No Service Element Involved.

  Case-Laws - AAR : Rate of GST - supply of food on board the trains - it is not possible to classify the whole contract as supply of services - The supply of goods i.e. food, bottled water etc. shall be charged to GST on value of goods (excluding the service charges) at applicable rates as pure supply of goods, as the same have no element of service. - AAR
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• AAR advises using interpretative rules to determine correct HSN code for billing mixed materials with one primary component.

  Case-Laws - AAR : Before AAR, the following question was raised: I would like to know if there is a combination of different materials and about 75% (value terms) is getting used of any one Raw Material, under which HSN should we make bill? - AAR advised the applicant to understand the interpretative Rules and determine the classification accordingly.
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• Trophies Not Universally Classified Under HSN Code 83062920; Must Follow Customs Tariff Headings Provisions.

  Case-Laws - AAR : Classification - TROPHY - even though the word TROPHY is specifically mentioned under 83062920, all trophies made of any material cannot be classified under this HSN and are to be classified as per the applicable provisions of the Customs Tariff Headings - AAR
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• "Sulekh Sarita" Classified as Workbook Under Heading 48.20, Lacks Features for Heading 49.03 Classification.

  Case-Laws - AAR : Classification of books - Work Books or Exercise Book - Sulekh Sarita - presence of printed text does not affect their classification under heading 48.20 as exercise books - Further, since, none of the books contain any pages with children’s picture, drawing or colouring matter, classification of any of them under heading 49.03 is not possible - AAR
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Income Tax

• Legal Expenses Deductible u/s 57(iii) for Recovering Fixed Deposit Interest, Court Confirms Direct Nexus with Income.

  Case-Laws - AT : Claim of legal expenses u/s 57(iii) against interest income - expenditure for recovering FD and interest - direct nexus - the award of interest is only by the specific directions of the Hon’ble High Court of Madras - the expenditure incurred by the assessee was wholly an exclusively for the purpose of earning of the income to qualify deduction u/s 57(iii) - AT
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• Assessee Must Deduct TDS for Works Contracts u/s 194C; Recording Transactions Differently Doesn't Exempt Obligation.

  Case-Laws - AT : TDS u/s 194C - works contract - Mere making entries in a different way would not absolve the assessee from deducting TDS on material so purchases from civil contractor for the purpose of business. - AT
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• Interest Income from Bank Deposits Eligible for Deduction u/s 10B of Income Tax Act for Export Activities.

  Case-Laws - AT : Exemption u/s 10A/10B - Interest income - deposits made with banks for obtaining letters of credit - Benefit of deduction u/s 10B on interest income related to export activity allowed - AT
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• Assessing Officer Cannot Reopen Issues Already Examined in Regular Assessment u/s 143(3.

  Case-Laws - HC : Reopening of assessment - reasons to believe - The law on re-opening does not permit the Assessing Officer to re-examine the issue already examined in regular assessment under Section 143(3). - HC
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• Revenue Must File Formal Application u/r 29 for Additional Documents in ITAT Rectification Case.

  Case-Laws - HC : Rectification application - admission of additional documents - The proper procedure prescribed by law in this case has to be followed. This naturally means that the Revenue has to move a formal application under Rule 29 of the ITAT Procedure Rules to justify the bringing on record of these additional documents in its possession. - HC
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Customs

• Demurrage Charges Post-Arrival at Indian Ports Excluded from Customs Valuation Transaction Value.

  Case-Laws - AT : Valuation - inclusion of demurrage charges - import of crude oil - The demurrage charges are admittedly incurred after the goods reached at Indian ports and, therefore, it is a post-importation event. Such charges, therefore, cannot form part of the transaction value - AT
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• Court Rules Importer Not Liable for Mis-declared Goods if Bill of Entry Matches Actual Goods Under Customs Act, 1962.

  Case-Laws - AT : High Sea sale - mis-declaration of goods - waste and scrap or Re-Rollable Steel Scrap - Manipulation of IGM - the responsibility of filing of IGM is not with the importer. Therefore, if importer declared the correct description in the bill of entry and the description tallied with the goods than he cannot be held to have contravened the provisions of Customs Act, 1962. - AT
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Corporate Law

• Court Orders Company Winding-Up, Appoints Official Liquidator Due to Unresolved Debt Dispute, No Bona Fide Dispute Shown.

  Case-Laws - HC : Winding up proceeding - Outstanding eligible debts - the respondent company has failed to show any bona fide dispute - winding up petition admitted - The Official Liquidator attached to this court is appointed as the Provisional Liquidator. - HC
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Service Tax

• Renting Land and Machinery Not Considered 'Support Services of Business or Commerce' for Service Tax Purposes.

  Case-Laws - AT : Business Support Services - The activity of renting of land and renting of plant and machinery cannot fall under the said explanation so as to recover by the definition of ‘support services of business or commerce’ - AT
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• Rule 27 of SEZ Rules, 2006: No conditions for service tax refund; rejection based on 2009 notification is unjustified.

  Case-Laws - AT : Refund of service tax - Rule 27 of the SEZ Rules, 2006 - statutory provisions governing the SEZ are silent about any condition or restriction for claiming the refund of service tax - Therefore, rejection of refund application by the authorities below by placing reliance on the notification dated 3.3.2009 cannot be sustained and is liable to be set aside. - AT
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• CENVAT Credit Recovery Limited to Manufacturers or Service Providers, Not Input Service Distributors.

  Case-Laws - AT : CENVAT credit - Input Service Distributor (ISD) - recovery can only be effected from the manufacturing units or the output service provider and cannot be made from the Input Service Distributor - AT
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Central Excise

• CENVAT Credit Claimed via Fake Invoices Invalid; No Actual Manufacturing Occurred, Duty Liability Must Be Reversed.

  Case-Laws - AT : CENVTA credit - fake invoices - the transaction was back to back and there was no manufacturing activity of the bricks in RRL is factory for which Central Excise duty needs to be discharged - It is settled position, of ineligible CENVAT credit, if any, is reversed of there is discharge of duty liability - AT
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Case Laws:

• GST

• 2018 (5) TMI 598
  Rate of GST - supply of food on board the trains - Nature of supply - Goods or services - outdoor catering services - composite contract - mixed supply - naturally bundled service - supply of food through food plaza on the railway platform (with A/C)/Food stalls on the railway platform (without A/C) - rate of tax on supply of newspaper - Held that:- The applicant has claimed that their supply is a composite supply and hence should be treated as supply of services. However, In view of the nature of supply involving several types of goods and services, it is important to determine whether the said supply is a composite supply or not. It is observed that the various goods and services supplied by the applicant have separate values, no supply is principal supply and various components of supply are not naturally bundled. Accordingly, the contract between IRCTC and the applicant does not appear to be a composite contract for supply of good and services. Hence, Section 7(l)(d) of the CGST Act, 2017 and Point 6 of Schedule II of the said Act are not applicable. Hence, it is not possible to classify the whole contract as supply of services. Supply of food and beverages (cooked/MRP/packed), at defined menu and tariff, by the applicant to IRCTC/passengers on behalf of IRCTC, on board the Rajdhani/Duronto Express trains - Held that: - A train is a mode of transport and hence cannot be called as a restaurant, eating joint, mess or canteen etc. and hence catering services provided on-board a train are not covered under S. No. 7 (i) of the said Notifications as claimed by the applicant - The supply of goods i.e. food, bottled water etc. shall be charged to GST on value of goods (excluding the service charges) at applicable rates as pure supply of goods, as the same have no element of service. The supply of newspaper is separately invoiced and hence it shall be at Nil GST under S. No. 120 of Notification No. 2/2017- Central Tax (Rate) dated 28.06.2017 and parallel Notifications of IGST and Delhi GST - the service charges are covered under Service Code (Tariff) 996335 in Group 99633 of heading 9963 of Annexure/Scheme of Classification of Services as catering services in train . The same are covered under S. No. 7 (ix) of Notification No. 11/2017 - Central Tax (Rate) dated 28.06.2017 as amended vide Notification No. 46/2017 - Central Tax (Rate) dated 14.11.17 and parallel Notifications of IGST and Delhi GST. Supply of food and beverages (cooked/MRP/packed) on board the Mail/express trains by the applicant directly to the passengers as per the menu/rates fixed by IRCTC/Railways - Held that: - here no element of service is involved and hence the same shall be considered as pure supply of goods and GST shall be charged on individual items at their respective applicable rates - benefit of notifications not allowed. Supply of food and beverages (cooked/MRP/packed) by the applicant to the passengers/general public at the rates fixed by the Indian Railways/IRCTC at food stalls at Railway platforms - Held that: - here also, no service element involved and hence the same shall be considered as pure supply of goods and GST shall be charged on individual items at their respective applicable rates - The mere heating/cooling of beverages or similar other services are incidental and minimal required to supply of goods and such supply cannot be called composite supply - benefit of notifications not allowed. Supply of food (Cooked/MRP/Packed) in food plaza - Held that: - the relevant document pertaining to details of items supplied, pricing detains, extent of services provided are not submitted. Hence, no ruling can be given in respect of supply from Food Plaza on the Railway Platform. Application disposed off.

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• 2018 (5) TMI 597
  Classification - application of Interpretive Rules - TROPHY - Wooden Trophies Frames - Metal Trophies Awards - Trophies made or pop and other Resins - material used in making of Trophy - If the word TROPHY is specifically mentioned under 83062920, So can we sell all trophies made of any material under this HSN? - Held that: - As can be seen, the constituent materials, the combination with non-metals, etc. have to be seen to understand the classification. Therefore, even though the word TROPHY is specifically mentioned under 83062920, all trophies made of any material cannot be classified under this HSN and are to be classified as per the applicable provisions of the Customs Tariff Headings. - Question is answered in negative. The question: If different code is allocated to trophies assembled of different material, I would like to know if there is a combination of different materials and about 75% (value terms) is getting used of any one Raw Material, under which HSN should we make bill? - interpretation of statute - Held that: - The titles of Sections, Chapters and sub-chapters are provided for ease of reference only; for legal purposes, classification shall be determined according to the terms of the headings and any relative Section or Chapter Notes and, provided such headings or Notes do not otherwise - the Chapter Notes may also be referred to understand the inclusions and exclusions therefrom. The applicant is advised to understand the above Rules and determine the classification accordingly - In absence of the needful information as to the constituent materials of the trophies, no exact decision can be given. Application disposed off.

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• 2018 (5) TMI 596
  Reimbursement of additional Goods and Service Tax (GST) liability - civil contract and work order issued prior to implementation of Goods and Service Tax Act, 2017 - Held that: - the Municipal Corporation, Raipur is directed to consider and dispose of petitioner s said application strictly in accordance with law, expeditiously, preferably within a period of four weeks from the date of receipt of certified copy of this order - petition disposed off.

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• 2018 (5) TMI 595
  Maintainability of petition - Held that: - the cause stated in the petition no longer survives - the petition is disposed of as having become infructuous.

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• 2018 (5) TMI 594
  Classification of books - Work Books or Exercise Book - Sulekh Sarita - Whether the books Sulekh Sarita are Printed Books classifiable under HSN 4901 10 10 or are classifiable as Exercise Books under HSN 4820 of the GST Tariff? - Held that: - the main feature which differentiates Work Books of heading 4901 from the Exercise Books of heading 4820 is that whereas the Work books of heading 4901 contain questions or exercise with space for writing the answers whereas, the Exercise Books of heading 4820 contain printed texts with space for copying manually. Hence, presence of printed text does not affect their classification under heading 48.20 as exercise books. Further, since, none of the books contain any pages with children s picture, drawing or colouring matter, classification of any of them under heading 49.03 is not possible. Hence, the goods are to be correctly classified under HSN 4820 Liability of registration under GST to discharge GST on reverse charge basis - Person supplying wholly exempted goods - The Sections 22, 23 and 24 have to be read together and from the combined reading of the same it is held that the applicant is required to take registration if it has GST liability under reverse charge mechanism. It is also observed that there is no threshold exemption for payment of GST under Reverse charge mechanism. Ruling:- The products supplied by the applicant Sulekh Sarita Part-A , Sulekh Sarita Part-B and Sulekh Sarita Part 1-5 are correctly classified under HSN 4820 and not under HSN 4901 or 4903. Hence, they are not covered under entry no. 119 or 121 of Notification No. 2/2017 Central Tax (Rate) dated 28.06.2017 and parallel notifications of SGST and IGST - The applicant is liable for registration if it has GST liability under reverse charge mechanism irrespective of the situation that it has no liability to pay GST as supplier of goods and/ or services.

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• Income Tax

• 2018 (5) TMI 593
  Rectification application - admission of additional documents - Held that:- The Tribunal’s observation in the impugned order made in the course of the rectification application i.e. that an order, allowing an application for early hearing, is merely administrative, is clearly incorrect. See Olympia Paper And Stationery Stores. Versus ACIT [1997 (3) TMI 157 - ITAT MADRAS-A] As far as the placing on record of the additional documents is concerned, there is considerable controversy as to whether in fact a statement was made on 22.11.2017, as is urged by the Revenue and contested on behalf of the assessee. The assessee also relies upon an affidavit filed by its counsel in this regard. This Court is of the opinion that irrespective of what is apparent even if the documents were produced and in the possession of the ITAT, the question of their being part of the record of the lower appellate authority or the AO did not arise. The proper procedure prescribed by law in this case has to be followed. This naturally means that the Revenue has to move a formal application under Rule 29 of the ITAT Procedure Rules to justify the bringing on record of these additional documents in its possession.

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• 2018 (5) TMI 592
  Reopening of assessment - reasons to believe - unexplained investment - farm house was allotted to the petitioner company by NOIDA Authority - failure to disclose fully and truly all material facts - Held that:- The “reasons to believe” incorrectly record that the assessee had made undisclosed investment and had failed to disclose the same for the assessment year 2010-11. During the year in question, the assessee had paid premium to the NOIDA Authority and not the entire purchase price. Balance premium was payable in the subsequent nine equal installments spread over to four years and six months. The transaction was not between two private individuals, but by the petitioner with NOIDA Authority. NOIDA Authority is established by the State of Uttar Pradesh. We do not see that the “reasons to believe” recorded establish any live nexus that income had escaped assessment and any fresh material and evidence would show that the original assessment framed under Section 143 (3) was erroneous and wrong - The transaction between the petitioner-assessee and the NOIDA Authority with regard to purchase of the farm house was examined and considered. The law on re-opening does not permit the Assessing Officer to re-examine the issue already examined in regular assessment under Section 143(3). Change of opinion cannot be a ground to re-open scrutiny assessment. - Decided in favour of assessee.

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• 2018 (5) TMI 591
  Reopening of assessment - period of limitation - consideration of petitioner's objections - Held that:- As agreed position between the parties that the order disposing of the objections dated 1st November, 2017 be set aside and the petitioner's objections be restored to the Assessing Officer for fresh consideration and disposal in accordance with law. The petitioners are at liberty to file additional submissions / objections to the reasons in support of the impugned Notice dated 29th March, 2017. Mr. Mistri, learned Senior Counsel appearing for the petitioner, on instructions, states that the fresh objections would be filed within a period of two weeks from today. The time to complete the assessment consequent to the reopening of the Notice would have expired on 31st December, 2017. However, in view of an adinterim stay granted on 15th December, 2017 by this Court, the time to complete the assessment stood extended

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• 2018 (5) TMI 590
  Attachment of bank accounts - Petitioner seeks refund of the amount of the amounts in excess of 20% of the tax demand consequent to the Assessment Order being retained by the Revenue - Held that:- In the present facts, as the order of the Assessment for Assessment Year 2014-15 was passed on 29th December, 2016 under Section 143(3) of the Act. A notice under Section 156 of the Act was also served on that date upon the Petitioner. Thus, time to pay the tax dues in terms of the notice would expire on 29th January, 2017. The Petitioner had admittedly not filed any application for stay of the demand under Section 220(6) of the Act with the Assessing Officer or the Commissioner of Income Tax during aforesaid period of 30 days. This, although an appeal before the CIT(A) was filed on 29th January, 2017. Thus, the action of the Respondent in recovering an amount after attachment of bank accounts of the Petitioner after 1st February, 2017, can not be found fault with, as the Petitioner was an Assessee in default. Thus, we find no reason to interfere.

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• 2018 (5) TMI 589
  Requirement to deposit 20% of the disputed demand amount - Held that:- Order set-aside for the reason that no speaking order is passed by the authorities while directing the petitioner-assessee to deposit 20% of the demand amount, mechanically referring to CBDT instruction No.1914 dated 21-03-1996. In the light of the judgment of this Court in the case of Flipkart India (P.) Ltd.,(2017 (3) TMI 802 - KARNATAKA HIGH COURT), the Income Tax Officer i.e. the Assessing Authority has to examine the applicability of the instructions of Circular No.1914 in as much as whether the assessment is “unreasonably highpitched” or whether “any genuine hardship would be caused to the assessee” in case the assessee were required to deposit 20% of the disputed demand amount. Without any application of mind, the AA has demanded 20% of the demand amount while disposing of the said application. Surprisingly, though the review petition was filed before the Principal Commissioner of Income tax, Income Tax Officer has passed the order which is wholly without jurisdiction. - Matter is remitted to respondent No.1 to re- consider the application for stay in accordance with law in an expedite manner.

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• 2018 (5) TMI 588
  TPA - ALP determination - application of Turnover Filter and functional comparability of the comparables - Held that:- A perusal of nature of business carried on by assessee reveal that the assessee was engaged in supply of imported biomedical diagnostic equipments which was not a normal line of business but a specialized kind of business requiring not only business skills but also technical skills as well. Upon consideration of material before us, this pertinent question has remained unanswered. As a logical consequence, if turnover filter was, at all, found to be a relevant factor for the margins earned by the assessee then the next pertinent question would be the upper / lower range thereof so as to arrive at meaningful TP study as envisaged by law. So far as the issue of comparables is concerned, we find that under TNMM method, only a broad functional comparability is required and the statute, itself, has provided for a tolerance range of +/-5% to weed out the dissimilarities since no two entities could exactly be the identical / similar in all respect. It is noteworthy that all the comparables under dispute has been selected by the assessee itself and no comparable has been introduced by the revenue and therefore, the more onus was on assessee to justify exclusion / inclusion of two comparables namely Ashco Industries Ltd. & Frontline. AR has brought to our notice the judicial pronouncements to contend that the comparables initially selected by the assessee could be excluded subsequently, finding them to be functionally or otherwise un-comparable in the circumstances. At the same time, we are of the opinion that there could not be any cherry picking to suit the requirement of the assessee. Remit the matter back to the file of Ld. AO / TPO for fresh determination of ALP of the transactions under dispute keeping in view the aforesaid factors

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• 2018 (5) TMI 587
  Transfer Pricing [TP] adjustment against Advertising, Marketing & Sales Promotion Expenses [AMP] - Held that:- We find that similar issue of AMP adjustment arose in assessee’s own case for AY 2010-11 wherein the Tribunal [2018 (1) TMI 1033 - ITAT MUMBAI] deleted the impugned adjustment, inter-alia, on the premise that in the absence of any agreement / arrangement between assessee and its Associated Enterprises [AE], the aforesaid transaction could not be termed as international transaction. Expenditure incurred by assessee in respect of foreign trips of doctors - allowable busniss expenditure - Held that:- The nature of expenses incurred by the assessee is not clear i.e. whether the same has been incurred to sponsor foreign visits of doctors to attend seminars or conferences relating to assessee’s products or whether the same are in the nature of freebies to the doctors. In our opinion, the expenditure incurred by the assessee to sponsor foreign visit to generate knowledge about the company’s products was clearly allowable u/s 37(1) and there was no restriction per-se regarding allowability of the same. Therefore, the matter stands remitted back to the file of Ld. AO for appreciation of the factual matrix and to be decided as per law after providing opportunity to the assessee to demonstrate the nature of these expenses. Disallowance of depreciation on Goodwill - Goodwill did not fall under specific intangible assets as mentioned in Section 32 - Held that:- This issue stood squarely covered in assessee’s favor by the decision of Hon’ble Apex Court rendered in CIT Vs. Smifs Securities Limited [2012 (8) TMI 713 - SUPREME COURT] wherein it was held that Goodwill was an intangible asset eligible for depreciation u/s 32. Accordingly, by deleting this addition, we allow this ground of appeal. Depreciation on Plant & Machinery & Building - claim disallowed since these assets remained idle since manufacturing process stood discontinued - Held that:- We are of the opinion that once an asset forms part of block of asset, it loses its individual identity and further, there is no requirement that each and every item in the said block should actually be used in the impugned AY so as to entitle the assessee to claim depreciation thereupon. Otherwise also, this issue stood covered in assessee’s favor by the cited order of the Tribunal in assessee’s own case for AY 2010-11. Therefore, this addition stand deleted. Advances written-off allowability - Held that:- Advances are primarily in the nature of advance for shipping & handling charges, advertising material, freight, packing, hotel booking, project hiring, consultancy charges, booking charges etc. which are primarily in relation to business activities carried out by the assessee in normal course of business and hence, allowable as Business Loss u/s 28 as per the decision of Hon’ble Bombay High Court rendered in Harshad J Choksi Vs CIT [2012 (8) TMI 710 - BOMBAY HIGH COURT]. Respectfully following the same, the impugned addition is deleted. Trading advances (bad debts) written off - Held that:- We find that since the said disallowance has been made by lower authorities for want of adequate information / details, the issue needs to be remitted back to the file of Ld. AO in the light of additional evidences submitted by the assessee hat the impugned expenditure was nothing but bad debts written-off and hence allowable in terms of decision of Hon’ble Apex Court rendered in TRF Ltd. Vs. CIT [2010 (2) TMI 211 - SUPREME COURT ].

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• 2018 (5) TMI 586
  Unexplained jewellery - Addition on account of gold and silver ornaments/ articles over and above permitted by CBDT’s Instruction No. 1916 - search a direction is issued to the income tax authority to release the jewellery. See Ashok Chadha vs. ITO [2011 (7) TMI 142 - DELHI HIGH COURT] and Suneela Soni Versus DCIT [2018 (3) TMI 1038 - ITAT DELHI] - Decided in favour of assessee

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• 2018 (5) TMI 585
  Revision u/s 263 - no proper enquiry to find out the income generated by the assessee from the business carried on as per the books of account - difference between the cash found during the course of search operation and the income returned by the assessee in the return of income - Held that:- Principal Commissioner found that the Assessing Officer has not made any proper enquiry to find out the income generated by the assessee from the business carried on as per the books of account. Principal Commissioner also found that the unaccounted income admitted by the assessee during the course of search operation cannot be considered to be part of book profit for the purpose of computing partners’ remuneration under Section 40(b)(v) of the Act. Therefore, the Principal Commissioner has rightly exercised his jurisdiction under Section 263 of the Act. As rightly submitted by DR, AO assessed the difference of Rs. 11,39,930/- from the cash found during the course of search operation and the income disclosed by the assessee. The Assessing Officer has not made any enquiry to find out the profit or income generated in the course of business as per the books of account. Therefore, this Tribunal is of the considered opinion that there is an error in the order of the Assessing Officer which is prejudicial to the interests of Revenue. Apart from the undisclosed income found during the course of search operation in the form of cash, the assessee carried on the business as per the books. Therefore, the income / profit generated from the business carried on by the assessee as per books also needs to be disclosed apart from the unaccounted income found and admitted during the course of search operation - Decided against assessee. G.P. estimation - Held that:- When the books of account were not rejected by the Assessing Officer, which were maintained by the assessee in the regular course of its business, there may not be any necessity for the Assessing Officer to estimate the profit. The estimation of profit would arise for consideration only when the books of account were not maintained properly and the same were rejected by the Assessing Officer in the course of assessment proceeding. Since the books of account were not rejected, this Tribunal is of the considered opinion that the estimation of profit may not be justified. Accordingly, orders of both the authorities below are set aside and the addition made by the Assessing Officer is deleted. - Decided in favour of assessee.

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• 2018 (5) TMI 584
  Reopening of assessment - notice issued u/s 148 issued beyond the statutory time of six years from the end of the assessment year - Held that:- In merits embargo enshrined in section 149 is operative and here within six years notice should have been issued but in the case of the assessee, it was not done and the appellate order itself, which is the basis of issue of notice under section 148 and very basis for invoking provisions of section 150(1), was passed on 28/2/2013. Notice under section 148 was issued thereafter, therefore, it is beyond the period of limitation. The ingredients of section 150(1), which the Revenue has made the basis for issue of notice under section 148, itself is not satisfied, therefore, issuance of notice under section 148 is directly hit by the provisions of section 149 limitation. We are, therefore, of the considered view that since issuance of 148 notice is barred by limitation, serving of notice itself is invalid and bad in law and, therefore, any consequent assessment or re-assessment is obviously null and void. Direct quashing of the re-assessment proceedings. - Decided in favour of assessee.

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• 2018 (5) TMI 583
  Assessee in default - non deduction of tds on payments made to retirement employees towards unutilized leave period where such payment was made in excess of Rs. 3 lacs - bonafide estimate of the salary - proceedings against the Assessee u/s.201(1) 201(1A) - assessee s contention that its employees were employees of the State Government and therefore the entire payment to its employees towards unutilized leave period on retirement was exempt u/s.10(10AA)(i) Held that:- As decided in ACIT Vs. Infosys BPO Ltd. [2013 (9) TMI 205 - ITAT BANGALORE] held that the plea of the Assessee that it made a bona fide estimate of employee s salary by valuing the perquisites in the form of residential accommodation provided to the employees by valuing the same as if employees were employees of Central Govt. has to be accepted. It is clear from the records that the position with regard to the assessee not being a Central govt. was brought to its notice by the department only in the proceedings initiated in 2013. Even thereafter, the Assessee has been taking a stand that its employees or employees of Central Govt. Obligation of the Assessee is only to make a bonafide estimate of the salary. Assessee has made such an estimate. The Assessee s obligation u/s.192 is therefore properly discharged and hence proceedings u/s.201(1) 201(1A) of the Act have to be quashed and are hereby quashed As in present case the circumstances explained by the KPTCL [assessee] regarding the manner of formation of KPTCL and the action of the revenue in not questioning KPTCL s action in the past several years after its formation and the manner of exercise of control and affording protecting to employees of KPTCL by the State Government were definitely factors which weighed with KPTCL when it made estimate of its employees income under the head Salaries . There is no reason for them to think that its estimate of employee s income under the head Salaries was incorrect as the belief it entertained was that its employees were to be regarded as employees of State Government and that its employees are entitled to exemption of the entire sum of unutilized leave encashment u/s.10(10AA)(i) of the Act. - Decided in favour of assessee

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• 2018 (5) TMI 582
  TDS u/s 194H - non deduction of tds on payments of commission to its distributors on the sale of pre-paid SIM cards, recharge coupons etc. - Held that:- The issue contested herein was decided against the assessee by the Hon’ble Delhi High Court in case of the assessee’s own case in CIT vs. Idea Cellular Ltd. for A.Ys 2003-04 and 2004-05 [2010 (2) TMI 24 - DELHI HIGH COURT]. But, in case of Bharati Airtel Limited vs. DCIT (2014 (12) TMI 642 - KARNATAKA HIGH COURT) and in assessee’s own case (2017 (7) TMI 1076 - RAJASTHAN HIGH COURT) Hon’ble Rajasthan High Court decided this issue in favour of the assessee. Thus as relying on case of CIT vs. Vegetable Products Ltd. [1973 (1) TMI 1 - SUPREME Court] wherein it is held that if two reasonable constructions of a taxing provision are possible that construction which favours the assessee must be adopted. Hence assessee cannot be deemed to be an ‘assessee-in-default’ on discount/commission of sale of prepaid sim cards. Therefore, Ground No. 2 of the assessee’s appeal is allowed. TDS on roaming charges - TDS u/s 194J - held that:- in absence of any human intervention during the actual roaming process, payment would not be Fees for Technical services as per the decisions of the various High Court and the Apex Court in case of CIT vs. Bharati Cellular[2010 (8) TMI 332 - Supreme Court of India]. Thus, payment made to other telecom operators should not be regarded as payment towards fees for technical service. No Tds liability - Decided in favour of assessee.

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• 2018 (5) TMI 581
  Deduction u/s 10B - exchange fluctuation gain - forward contracts are devices to hedge foreign currency fluctuation risk - Held that:- AO has not brought anything on record to prove that foreign exchange gain was due to any speculative transaction entered into by assessee. - Foreign exchange gain earned by assessee was arising out of business of eligible undertaking for purposes of deduction under section 10B Expenses towards royalty/technical know-how - revenue or capital in nature - Held that:- assessee acquired merely right to draw upon technical knowledge of foreign companies for a limited purpose of carrying on its business, and that foreign companies did not part with any of their assets absolutely for ever or for a limited period of time, that they continued to have the right to use their knowledge and, even after agreements had run their course, their rights in this behalf was not lost, that assessee had not, therefore, acquired any asset or advantage of an enduring nature for benefit of its business and that payments were, therefore, revenue in nature and were deductible. Exemption u/s 10A/10B - Interest income - deposits made with banks for obtaining letters of credit - these letters of credit are utilised for purposes of export activity carried on by assessee - Held that:- Since there is no bifurcations that has been provided by assessee either before us or before the authorities below it cannot be assumed that entire interest income claimed by assessee could be linked with the export activity. - Benefit of deduction u/s 10B on interest income related to export activity allowed - AO directed to bifurcate the interest related to export activities and other activities. Bad debts deleted by holding that these are unascertained liabilities - Held that:- Hon’ble Supreme Court in the case of CIT versus HCL Commet Systems & Services Ltd. [2008 (9) TMI 18 - SUPREME COURT] has held that provisions for bad and doubtful debts being ascertained liability are not required to be added in the matter of computation. He submitted that subsequent to the decision of Hon’ble Supreme Court, an amendment has been made in section 115 JB by Finance Act 2009 with retrospective effect from 2001, and the issue now has to be decided against assessee. Indexation granted on the sale of shares by assessee of State Bank of Bikaner and Jaipur - Held that:- It is an admitted position that this is the sole transaction entered into by assessee of sales/purchase of shares in view of which loss has been incurred during the year under consideration. There is no evidence that has been brought on record by department to establish that assessee has been carrying on with activity of sales/purchase of shares. Under such circumstances applicability of Explanation to section 73 has to be construed in a narrow sense, which indicates where the income is derived from business activity of sales/purchase of shares

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• 2018 (5) TMI 580
  Genuineness of transactions for sale and purchase of shares on which exemption u/s. 54F claimed - Held that:- It is evident from the records that the assessee has failed to furnish any documentary evidence in support of sale and purchase of shares of FTE. The assessee has merely given the name of broker M/s. Vijay Bhagwandas & Co. in support his contentions. During the course of inquiry by Assessing Officer from aforesaid broker it transpired that none of the bills as mentioned by the assessee for purchase and sale of shares of FTE were issued by the broker in favour of the assessee. The assessee has miserably failed to substantiate genuineness of transactions for sale and purchase of shares on which exemption u/s. 54F of the Act has been claimed. The assessee has also failed to justify phenomenal increase in the value of share from Rs. 1.16 per share to Rs. 70.18 per share within a short span of one year. Addition on account of alleged commission paid to broker - Held that:- Since, the assessee has failed to substantiate the transaction of sale and purchase of shares, there is no question of payment of commission and hence, the said claim of assessee has been rightly rejected by authorities below. Levy of penalty u/s. 271(1)(c) - non specification of charge - Held that:- The charge for levy of penalty u/s. 271(1)(c) has to be specifically conveyed to the assessee at the time of recording satisfaction, otherwise, the principles of natural justice are offended. The assessee should know the charge which he has to meet while defending levy of penalty. Thus, in view of the defect in recording satisfaction for levy of penalty, the impugned order is set aside and penalty in both the assessment years 2005-06 and 2006-07 is deleted.

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• 2018 (5) TMI 579
  Deduction u/s. 80GGC allowability - payment has been made to a newspaper being run by a political party - whether assessee has not given donation to any Political Party registered u/s. 29 of the Representative People Act, 1951? - Held that:- In the present case, the payment has been made to a newspaper being run by a political party for insertion of some advertisements in the said newsletter/newspaper. The assessee has made payment of Rs. 10,50,000/- to the newsletter/newspaper during April, 2010 to March, 2011. The Commissioner of Income Tax (Appeals) while allowing the assessee’s claim of deduction u/s. 80GGC observed t none of the receipts mention that the amount received is donation. However, for proper adjudication of this issue we deem it appropriate to restore the issue back to Assessing Officer for verification. If the assessee has made donation to a political party as defined u/s. 80GGC, the assessee is eligible to claim deduction under the provisions of aforesaid section. AO shall decide this issue after examining the documents on record Allowing expenditures without ascertaining the genuineness of expenditures - Held that:- The onus is on the assessee to prove that the expenditure has been incurred “wholly and exclusively” for the purpose of business. The assessee has failed to discharge this onus. Similar is the position in respect of payment made for Business Auxiliary Services allegedly received by assessee from Shri Sham Chopra. The Commissioner of Income Tax (Appeals) in the impugned order has not referred to any document to come to a conclusion that the expenditure is not personal in nature. In the absence of any documentary evidence connecting expenditure with the business of assessee, the payments made by the assessee towards legal fee Rs. 1 crore and Business Auxiliary Service Rs. 1.10 crore have to be disallowed. Accordingly, ground No. 2 raised in appeal by the Revenue is allowed.

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• 2018 (5) TMI 578
  TDS u/s 194C - Disallowance u/s 40(a)(ia) - non deduction of tds on payment to contractors - segregation of expenses - Held that:- The assessee admitted that the assessee has not deducted TDS on the amount in question as per law and the same needs to be disallowed. The assessee filed statement of expenses payable. The assessee, therefore, offered a sum of Rs. 1,03,57,150/- to be disallowed in the computation of income, being inadvertently left out. The assessee also filed revised computation of income to the fact and also stated that the amount is offered for tax subject to no penal action. The AO in view of the admission of the assessee to pay tax on the impugned amount accepted the offer of the assessee and made the addition of the impugned amount on agreed basis. It is well-settled law that no appeal lies on agreed additions. Mere making entries in a different way would not absolve the assessee from deducting TDS on material so purchases from civil contractor for the purpose of business. These facts, therefore, show that there is no mistaken facts in making offer to surrender amount in question before the AO. In these circumstances, the assessee cannot resile from his statement and admission made before the AO. The facts and circumstances clearly justify the orders of the authorities below in making the addition. Since the assessee agreed for addition before the AO and there was no justification to withdraw from the offer of surrender, no interference is called for in the matter. Appeal of the assessee is not maintainable in the present form and has no merit as well. - Decided against assessee.

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• 2018 (5) TMI 577
  Claim of legal expenses u/s 57(iii) against interest income - expenditure for recovering FD and interest - direct nexus - AO objected for claiming the entire expenses in the assessment year 2014- 15 - Held that:- The fate of the assessee to get back his investment was not automatic, but by the directions of the Hon’ble High Court. The Hon’ble High Court of Madras has rendered justice to the assessee by directing the respondent bank to pay the amount payable to him under seven FDRs treating the said amount as if it was continuing in fixed deposits till date with the same rate of interest till the amount is paid by the bank. The award of interest thereon till the date of order of the Hon’ble High Court, of course, not automatic or by any provision or to say a natural consequence to the retrieval of the investment, but, only by the specific directions of the Hon’ble High Court of Madras. Thus, we hold that the expenditure incurred by the assessee was wholly an exclusively for the purpose of earning of the income to qualify deduction under section 57(iii) and admissible subjected to basic checks under the Act. AO will allow the legal expenses for which the assessee has produced valid bill - With regard to the claim of travel expenses, AO is directed verify the posting of the assessee’s case for putting his appearance/meeting with his advocate and allow the claim after satisfying that there was no personal element involved for claiming the travel expenses. - Decided in favour of assessee for statistical purposes.

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• Customs

• 2018 (5) TMI 572
  Pre-deposit - reduction in quantum of pre-deposit - Classification of goods - hooks and eyes fastening strips - whether classified under CTH 83081010 or otherwise? - Held that: - In Pioneer Corporation versus Union of India, [2016 (6) TMI 437 - DELHI HIGH COURT], a Division Bench of this Court has held that the High Court while exercising writ jurisdiction under Article 226 of the Constitution can exercise discretion and reduce the pre-deposit in rare and deserving case, notwithstanding the amendment made under Section 35F of the Customs Act. The statute has not withdrawn or taken away the said power vested in the Writ Court, which should be exercised in rare but compelling and deserving cases, when the cause of justice requires such reduction - petition disposed off.

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• 2018 (5) TMI 571
  Writ of Mandamus - deletion of Tariff Entry No. 902780 from the N/N. 24/2005-Cus. dated 01.03.2005 - detention of goods on the ground of non-payment of additional duty imposed in the above said Notification - no adjudication taken place - Held that: - The prayer sought for by the petitioner cannot be granted for the reason that after detention of goods by the customs department, if the petitioner disputes the imposition of additional duty on the imported goods, the imposition of additional duty on the imported goods is sustainable or not can be decided on after the customs department initiate appropriate proceeding for adjudication and after hearing the same. Till date there is no adjudication proceedings initiated in the present case. Hence, Mandamus cannot be issued against the respondents because, the respondents have the power to adjudicate the matter. Petition dismissed.

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• 2018 (5) TMI 570
  High Sea sale - mis-declaration of goods - waste and scrap or Re-Rollable Steel Scrap - Manipulation of IGM - Quantum of redemption fine and penalty - Whether in view of high see purchase and declaration in bills of entry, in all these appeals redemption fine and penalty should be reduced to 10% of the fine and penalties imposed by original adjudicating authority in each case, as held by the Hon ble Member (Judicial)? - Difference of opinion - majority order. Held that: - the responsibility of filing of IGM is not with the importer. Therefore, if importer declared the correct description in the bill of entry and the description tallied with the goods than he cannot be held to have contravened the provisions of Customs Act, 1962. In view of their acceptance that on their behest, IGM was manipulated, I agree with the finding of learned Member (j) - both HMS and re-rollable steel scrap are having the same classification as sub heading 7204 49 00. However, the fact that 87% of the goods did not tally with the description of goods in Bill of Entry. Therefore, I agree with the opinion of Member (J). In view of the majority order, the impugned order is set aside and the appeal is allowed with consequential relief.

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• 2018 (5) TMI 569
  Levy of customs duty on liquid cargo not received in the shore tanks - Valuation - inclusion of demurrage charges - Revenue was of the view that the assessment and valuation of the goods should be based on the transaction value declared in the invoice price irrespective of the quantity ascertained through shore tank measure or in other manner - whether the demurrage charges incurred by the appellant should be included in the assessable value? Held that: - reliance placed in the case of C.C.E., Mangalore Versus Mangalore Refinery & Petrochemicals Ltd. [2016 (1) TMI 325 - SUPREME COURT], where it was held that it is not even necessary to go into the various nuances of the matter as we are of the opinion that these appeals are bound to fail on one simple ground. The assessment is to be made on the basis of quantity of crude oil actually received in the shore tanks in the port of arrival in India. Valuation - inclusion of demurrage charges for the purposes of valuation of crude oil - Held that: - The demurrage charges are admittedly incurred after the goods reached at Indian ports and, therefore, it is a post-importation event. Such charges, therefore, cannot form part of the transaction value - demurrage charges are not includable in the transaction value of the crude for the purposes of assessment. Appeal allowed - decided in favor of appellant.

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• Corporate Laws

• 2018 (5) TMI 576
  Breach of contract - jurisdiction of court - alternative remedy of statutory appeal - petitioner-Company has availed credit facilities from Bank Consortium headed by respondent no.4, i.e., State Bank of India but failed to make payment as per the financial discipline laid-down between the parties and there were efforts for restructuring of the petitioner-Company’s loan account - Held that:- The petitioners cannot be heard to say that writ jurisdiction is the only remedy merely because they have chosen to add some new reliefs or the respondents in the writ petition. There is nothing on record to suggest that the petitioners have ever approached the State of Madhya Pradesh for the release of the due amount of alleged subsidy hence they cannot spring surprise on the Ministry of Textiles or State of Madhya Pradesh by seeking a writ of mandamus without even once agitating the matter before those agencies. Similarly, the question whether RBI guidelines have been followed or consciously violated by the SBI, is also essentially a question of fact which can be effectively adjudicated by the learned Appellate Tribunal. Assuming that there is some merit in the petitioners’ contention that all these issues were raised before the Adjudicating Authority and the same have not been decided on merits, yet it would not be a sufficient ground to entertain the writ petition. There is a sea difference between ‘erroneous exercise of jurisdiction’ or ‘lack of jurisdiction’ in a Tribunal. The erroneous or failure to exercise jurisdiction by a Tribunal is a ground which can be effectively taken before the Appellate Authority. It appears to us that the petitioners cannot be heard to say that notwithstanding the powers expressly conferred under Section 60(5) of the Code, the NCLT lacks jurisdiction to entertain or dispose of the issues raised by them. Undisputedly, equally efficacious and effective remedy of appeal is available under Section 61 of the Code to the petitioners. More-so, the petitioner-Company had submitted to the jurisdiction of Adjudicating Authority and in that process, continued to appear and associate before the Adjudicating Authority during 15 effective hearings in a long span of 6 months. Unfortunately, instead of approaching the National Company Law Appellate Tribunal under Section 61 of the Code, the petitioner-Company has now preferred to invoke the writ jurisdiction of this Court. With a view to enable the petitioners to avail the alternative remedy of statutory appeal, as directed above, we deem it appropriate to direct that the ‘Interim Resolution Professional’ appointed by the Adjudicating Authority vide order dated 19.04.2018 shall not take over management of the first petitioner- Company till 15.05.2018 so as to meanwhile enable the petitioners to file their statutory appeal.

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• 2018 (5) TMI 575
  Winding up proceeding - Outstanding eligible debts - Held that:- The admission that the goods were supplied, the tendering of the post dated cheques and the balance confirmation persuade me to come to a conclusion that the defence sought to be raised by the respondent is a sham and moonshine. The respondent are unable to pay their debts. The settled legal position is that the debts claimed should be payable by the respondent company. It is only where the respondent company raises a bona fide dispute then no winding up petition would lie. Thus in the facts of the above case the respondent company has failed to show any bona fide dispute. Accordingly admit the present petition. The Official Liquidator attached to this court is appointed as the Provisional Liquidator. He is directed to take over all the assets, books of accounts and records of the respondent-company forthwith. The citations be published in the Delhi editions of the newspapers “Statesman” (English) and “Veer Arjun” (Hindi), as well as in the Delhi Gazette, at least 14 days prior to the next date of hearing

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• 2018 (5) TMI 574
  Winding up petition filed during pendency of arbitration proceedings - Settlement Agreement entered - revival of winding up petition - case of the petitioner is that despite order dated 29.5.2017 passed by this court, the respondent has not abided by the settlement agreement and handed over the Trina Receipts - Held that:- As in terms of the Settlement Agreement the petitioner had undertaken to make the payment of the settlement amount of USD 30.379 million in terms of the payment schedule. In the eventuality of default, the entire outstanding amount of USD 35,740,136/- less any amount paid alongwith interest @12% per annum was payable from the date of default till the date of payment. There is no dispute that clause 4 of the settlement agreement states that in case the petitioner is unable to make the payment within the stipulated schedule the entire outstanding of USD 35,740,136/- would become payable with interest. This court however in its order dated 29.5.2017 noted clause 4 of the settlement agreement but concluded that on account of the delay in making payment by the petitioner it would not be justifiable to vitiate the efforts made by the court to conclude the settlement as the amount had been received by the respondent. The court further concluded that the respondent cannot be made to suffer liquidation proceedings. Hence, essentially on facts this court came to a conclusion that there was no justification to revive the winding up petition. There is nothing in the two orders of this court, namely, order dated 12.01.2015 and 29.05.2017 on account of which we can conclude that the respondent has substantially interfered in the course of justice. In my opinion, the facts do not warrant coming to a conclusion that the respondent is guilty of wilful disobedience of the order of this court or of contempt of court. Petition dismissed.

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• 2018 (5) TMI 573
  Appellant eligibility to file an application under sections 397 The Applicant/Appellant (Petitioner) misled the Hon’ble Supreme Court by stating that the Tribunal has recorded a finding that the Applicant/Appellant (Petitioner) has 14.017% shareholding.

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• Service Tax

• 2018 (5) TMI 568
  Maintainability of appeal - alternative remedy - sole reason for bypassing the appellate remedy cited before us is that the case involves complex accounting entries which the petitioner is in a position to reconcile - Held that: - the statute requires pre-deposit of 7.5% for filing appeal before the Tribunal. In other words, even if the petitioner were to file appeal against the impugned order of the Commissioner, he would have to deposit 7.5% of the disputed demand - impugned order dated 30.8.2017 is set aside. Proceedings are placed back before the Commissioner for fresh consideration and disposal in accordance with law - petition disposed off.

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• 2018 (5) TMI 567
  CENVAT credit - common input services - Whether the 1st respondent is correct in denying the entire common input service credit availed by the Appellant on an incorrect factual premise that the appellant has availed the option under Rule 6(2) of CCR for certain common input services and Rule 6(3) of CCR for certain other common input services? - Matter is remanded to CESTAT, Chennai for fresh consideration on merits.

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• 2018 (5) TMI 566
  Whether in the facts and circumstances of the case and law, the Hon'ble Tribunal has committed substantial error of law in setting aside the penalty as being unwarranted? Held that: - the present case stands concluded by a decision of this court in the case of Assistant Commissioner of Central Goods and Service Tax, DivisionIV V. Vodafone Essar Gujarat Limited, [2017 (10) TMI 82 - GUJARAT HIGH COURT] arising out of the very same impugned order, wherein this court has answered the question in favor of the assessee and against the revenue. Appeal dismissed - decided in favor of appellant.

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• 2018 (5) TMI 565
  Refund of service tax paid - Rule 27 of the SEZ Rules, 2006 - Held that: - Since the SEZ Act and the rules have not provided any conditions for granting exemption from payment of service tax, the Central Government cannot issue the notification under a different statute i.e. Finance Act, 1994 in providing the conditions for grant of refund of service tax paid on the taxable services used for the authorised operations in the SEZ - by virtue of Section 51 of the SEZ Act, the provisions of the said Act and the Rules made there under are mandated to have overriding effect over the provisions contained in any other statute. All the activities relating to SEZ shall be guided and governed by the provisions contained in SEZ Act and the SEZ Rules. Since, such statutory provisions governing the SEZ are silent about any condition or restriction for claiming the refund of service tax, the notification issued by the Central Govt. in terms of Finance Act, 1994 cannot prescribe any conditions, which are contrary to the SEZ provisions. Therefore, rejection of refund application by the authorities below by placing reliance on the notification dated 3.3.2009 cannot be sustained and is liable to be set aside. Refund allowed - appeal allowed - decided in favor of appellant.

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• 2018 (5) TMI 564
  CENVAT credit - Input Service Distributor (ISD) - various input services - Held that: - The demand has been confirmed against the ISD and as per the settled position of law, recovery can only be effected from the manufacturing units or the output service provider and cannot be made from the Input Service Distributor - the CENVAT credit cannot recovered from the appellant who is an Input Service Distributor. Time limitation - suppression of facts - Held that: - the appellants have not suppressed any material fact from the Department with intention to evade the duty - period involved in the present case is from December 2008 to December 2011 and the show-cause notice was issued on 16.1.2014, the entire demand in the present case is also barred by limitation. Appeal allowed - decided in favor of appellant.

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• 2018 (5) TMI 563
  CENVAT credit - ‘input service’, prior to amendment of Rule 2(l) of the rules - retail Mall was utilised for providing the taxable services of renting of immovable property - Held that: - Since, the appellant has taken the credit prior to 1.4.2011 and the Mall was also completed before 2011, denial of Cenvat benefit, in our considered opinion, cannot be sustained. Tribunal in the case of Navratna S.G. Highway Prop. Pvt. Ltd. Vs. CST, Ahmedabad [2012 (7) TMI 316 - CESTAT, AHMEDABAD] has held that the goods and services used for construction of warehouse, which is further used for providing the output service should be available for the Cenvat benefit. Since, there is dispute about the period of taking Cenvat credit, the matter should go back to the original authority for ascertaining the period, when the Cenvat credit was taken by the appellant in its Cenvat account - appeal allowed by way of remand.

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• 2018 (5) TMI 562
  CENVAT credit - input service , prior to amendment of Rule 2(l) of the rules - retail Mall was utilised for providing the taxable services of renting of immovable property - Held that: - Since, the appellant has taken the credit prior to 1.4.2011 and the Mall was also completed before 2011, denial of Cenvat benefit, in our considered opinion, cannot be sustained. Tribunal in the case of Navratna S.G. Highway Prop. Pvt. Ltd. Vs. CST, Ahmedabad [2012 (7) TMI 316 - CESTAT, AHMEDABAD] has held that the goods and services used for construction of warehouse, which is further used for providing the output service should be available for the Cenvat benefit. Since, there is dispute about the period of taking Cenvat credit, the matter should go back to the original authority for ascertaining the period, when the Cenvat credit was taken by the appellant in its Cenvat account - appeal allowed by way of remand.

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• 2018 (5) TMI 561
  Extended period of limitation - suppression of facts - renting of immovable property service - Held that: - invoking the extended period of limitation is justified because the assessee has failed to disclose that they are liable to pay the service tax, as service tax was imposed on renting of immovable property from the year 2006 onwards - they have not filed the ST-3 returns also - the reasoning given by the original authority invoking the extended period is justified - decided in favor of Revenue. Valuation - inclusion of security deposit - Held that: - security deposit not to be included in the gross value of the taxable service - reliance placed in the Division Bench judgment in the case of Samir Rajendra Shah vs. CCE [2014 (11) TMI 499 - CESTAT MUMBAI] - decided against Revenue. The fact that Stylus Animation College and Lakshmi Memorial Educational Trust fall in the category of ‘Educational Institution’ or not, the original authority has not given the finding based on any evidence and the assessee says that they have sufficient evidence to prove that both these institutions fall in the definition of ‘Educational Institution’ - the matter is remanded back to the original authority to decide whether these institutions fall in the definition of ‘Educational Institutions’ after considering the documents which may be produced by the assessee. Appeal allowed by way of remand.

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• 2018 (5) TMI 560
  Refund of unutilized CENVAT credit - input services - Health Insurance Service - Services by Air Conditioned Restaurants - Management, Repair and Maintenance Service - Renting of Immovable Property service - Supply of Tangible Goods Services - Event Management Service - Transportation of employees services - Management or Business Consultant’s service - Security Agency Service - Catering or Staff Welfare Services - Sponsorship Services - Business Exhibition Service - Share Valuation Service - General Insurance Services - denial on the ground of nexus - Held that: - after the amendment in the definition of ‘input service’ w.e.f 1.4.2011 certain input services have been specifically excluded and health insurance is one of the ‘input service’ which has been specifically excluded from 1.4.2011 - refund on health insurance rightly rejected. Services by Air Conditioned Restaurants - Held that: - the appellant himself have admitted that it has been inadvertently availed and the same will be reversed. Management, Repair and Maintenance Service - Held that: - these services are consumed for the maintenance and repair of the office premises, facility management charges and charges for housekeeping, which are required for effectively and efficiently providing the export of service - these services falls in the definition of ‘input service’ subject to the verification of the invoices which are enclosed by the appellant along with the appeal papers - matter on remand. Renting of Immovable Property service - Held that: - this service falls in the definition of ‘input service’ and the appellant is entitled to the refund of service tax paid on this ‘input service’ subject to verification of the invoices - matter on remand. Supply of Tangible Goods Services - Held that: - equipments like photocopier machine have been obtained on lease to be used for provision of output service and without such equipment the appellant may not be in a position to render the services smoothly - this service also falls in the definition of ‘input service’ and therefore, the appellant is eligible for credit subject to verification of the invoices - matter on remand. Event Management Service - Held that: - this service falls in the definition of ‘input service’ as the said services are integral to the provision of output service - refund allowed. Transportation of employees services - Held that: - These services are directly linked to the performance of the employees and are required for provision of export of output service - This service falls in the definition of ‘input service’ and therefore, the appellant is entitled to refund of service tax subject to verification of invoices - matter on remand. Management or Business Consultant’s service - Held that: - these services are in relation to profession or business consultancy charges paid towards preparation of statutory documents like Form 16 under Income Tax Act, 1961 and this service includes professional consultancy services in relation to information technology and its related equipments - This service falls in the definition of ‘input service’ and therefore, the appellant is entitled to refund of service tax subject to verification of invoices - matter on remand. Security Agency Service - Held that: - this does not fall in the definition of ‘input service’ and it is only a welfare activity for the security agency - refund rightly rejected. Catering or Staff Welfare Services - Held that: - outdoor catering service is not eligible for input service credit post amendment dated 1.4.2011 and therefore, the appellant is not entitled to refund on account of this service - refund rejected. Sponsorship Services - Held that: - this falls in the definition of ‘input service’ as sales promotion service are specifically included in the definition of ‘input service’ as per Rule 2(l) of CCR - refund allowed. Business Exhibition Service - Held that: - business exhibition conducted for the prospective customers and the said service are specially included in the definition of ‘input service’ as per Rule 2(l) of CCR - refund allowed. Share Valuation Service - Held that: - this service is in relation to the share valuation service received from an authorized share valuator and this fall in the definition of ‘input service’ - refund allowed. General Insurance Services - Held that: - this kind of insurance falls in the definition of ‘input service’ as it is required in connection with the business operation and providing output business services - refund allowed. Refund of Rs. 6,90,950/- on the ground that the invoices have not been produced - Held that: - appellant submits that the invoices were submitted before the authorities but they were not examined and he undertakes to submit the invoices again before the adjudicating authority if the matter is remanded - matter on remand. Refund of Rs. 9,466/- was rejected on the ground that Service Tax Registration number was not available - Held that: - refund cannot be rejected on procedural infractions - refund allowed. Appeal allowed by way of remand.

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• 2018 (5) TMI 559
  Refund claim - input services - Diesel Consumption Charges - Out of Scope Charges - denial on the ground that they do not fall in the definition of “input service - Held that: - as regards Diesel Consumption Charges, it is electricity back-up which is provided by the Landlord. In the case of non-availability of electricity, the company requires diesel generators to resume the operation for which the service provider is collecting the service tax for electricity support without which it would affect the productivity of the service provided and therefore, it falls in the definition of “input service - refund allowed. Out of Scope Charges - Held that: - these charges are in relation to building maintenance and repair service, which are also essential for rendering the software services and therefore, they are rightly classifiable as “input service - refund allowed. Appeal allowed - decided in favor of appellant.

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• 2018 (5) TMI 558
  Penalty u/s 77 and 78 of the Finance Act, 1994 - service tax along with interest paid much before the issue of SCN and there was no deliberate intention to evade tax, therefore, no penalty should be imposed on them - Held that: - the appellant has collected the service tax but failed to deposit the same in the Government Treasury. No doubt, the appellant has paid the service tax along with interest when the department issued the summons to the appellant. Penalty imposed under Section 77(2) is concerned, the appellant has produced the return which was filed belatedly by him along with penalty of Rs. 2,000/-. Since the returns have been filed with the penalty, therefore, there is no justification for imposing penalty under Section 77(2) of the Act. Penalty imposed under Section 78 - Held that: - in the present case, the Assistant Commissioner has imposed equal penalty under Section 78 of the Finance Act, 1994 and has not afforded an opportunity to pay 25% of Service Tax as penalty within a period of 30 days as per the proviso to Section 78 as applicable during the relevant time - in view of the fact that there was no inordinate delay in payment of service tax along with interest by the assesse, the ends of justice will be met, if the appellant is directed to pay 25% of Service Tax as penalty. Appeal allowed - decided in favor of appellant.

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• 2018 (5) TMI 557
  Refund of unutilised CENVAT credit - input services - Scientific and Technical Consultancy Service - denial on account of nexus and also on the ground of time bar as well as non-registration under a particular category by the appellant - Held that: - Commissioner (A) has wrongly rejected the refund claim on the basis that it is time bar as well as non-registration under a particular category by the appellant - Karnataka High Court in the case of mPortal India Wireless Solutions Pvt. Ltd. [2011 (9) TMI 450 - KARNATAKA HIGH COURT] has held that Registration not compulsory for refund - also, the Tribunal in so many decisions has considered the issue of nexus and has held that the professional charges and furniture and fixtures are eligible input service. Time limitation - Held that: - the relevant date for the purpose of deciding the time limit for consideration of refund claim under Rule 5 of CENVAT Credit Rules may be taken as the end of the quarter in which the FIRCs is received, in cases where refund claims are filed on a quarterly basis - refund cannot be rejected. The present case remanded to the original authority to decide the refund claim of the appellant in view of the law declared by the Tribunal in various decisions cited supra, after examining and verifying various documents which may be produced by the appellant in support of their submissions - appeal allowed by way of remand.

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• 2018 (5) TMI 556
  Availing benefit of abatement notification with Cenvat Credit - Demand of differential duty - works contract services - paying 33% service tax - whether the respondent herein is required to be saddled with service tax liability in respect of services rendered by them during the period April 2006 to March 2007 or otherwise? - Held that: - the Revenue has not effectively contradicted the factual findings of the adjudicating authority who had appreciated the entire case records and held that the proceedings initiated by the show-cause notice needs to be dropped - In view of the fact that the Revenue has not contradicted the factual findings, the impugned order is correct and legal and does not suffer from any infirmity - appeal dismissed - decided against Revenue.

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• 2018 (5) TMI 555
  Liability of service tax - freight charges for transportation of sugarcane from the field to their factory premises - reverse charge mechanism - Held that: - the issue is no more res integra, as the Tribunal in the case of Nandganj Sihori Sugar Co. Ltd. Versus Commissioner of C. Ex., Lucknow [2015 (12) TMI 1604 - CESTAT ALLAHABAD] was considering the very same issue and held in the favor of the assesses and set aside the demands of the service tax on the amounts paid as transportation charges of sugarcane, on behalf of the farmers - appeal allowed - decided in favor of appellant.

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• 2018 (5) TMI 554
  Erection and commissioning services - Neither the original authority nor the first appellate authority has given details of work order and nature of work executed by the appellant to confirm the tax liability - principles of natural justice - Held that: - the impugned order put the onus on the appellant to establish that they have not rendered taxable service as alleged in the show cause notice. The same is not sustainable, as basic legal principle is the person who is alleging should establish the fact - No material evidence is available in the proceedings before the lower authorities except information purported to have been received from IOCL. The impugned order cannot be sustained giving liberty to the original authority to proceed afresh after providing all the supporting details to the appellant and giving adequate opportunity to the appellant to defend their case - appeal allowed - decided in favor of appellant.

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• 2018 (5) TMI 553
  CENVAT credit - denial on the grounds that in some of the invoices address of the appellant was not mentioned and as such requirement of sub-rule (2) of Rule 9 of Cenvat Credit Rules, 2004, was not complied with - Held that: - it cannot be presumed that unless the facility of premises is provided by a Hotel/ Restaurant, it cannot be considered as input service - Service Tax paid on Restaurant service as input service credit allowed to the appellant. Matter remanded to the Original Authority in respect of disputed credit availed on the basis of such documents which have deficiency such as absence of the address of the appellant, etc., for verification by the Original Authority as provided under proviso to sub-rule (2) of Rule 9 of CCR 2004 - appeal allowed by way of remand.

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• 2018 (5) TMI 552
  Business Support Services - contention of the appellant is that by providing land as also plant and machinery on rent basis, the services cannot be held to be fall in the category of business support services inasmuch as they have simplicitor rented the land and plant and machinery - Held that: - the facts lead to the conclusion that the services undertaken by the appellant would fall under the category of renting of immovable property and supply of tangible goods. The explanation appearing under the definition of support services of business refers to altogether different circumstances wherein infrastructure is provided alongwith the office and other common utility to a person who is conducting his business from that place - The activity of renting of land and renting of plant and machinery cannot fall under the said explanation so as to recover by the definition of ‘support services of business or commerce’ - appeal allowed - decided in favor of appellant.

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• 2018 (5) TMI 551
  100% EOU - Export of services - whether the Appellant-M/s Jubilant Chemsys Limited have exported the service and received convertible foreign exchange as required under the Export of Service Rules? - Held that: - the issue is no longer res-integra in their own case Jubilant Chemsys Limited Versus C.C. & C.E. & S.T. - Noida And (Vice-Versa) [2017 (7) TMI 62 - CESTAT ALLAHABAD], for the preceding period April, 2005 to March, 2011 this Tribunal have held that the appellant have satisfied both the conditions for export of service, namely rendering of service from India and receipt of the service by the client outside India of consideration in convertible foreign currency in India - decided in favor of appellant. Levy of interest - Held that: - no Service Tax was payable by the appellant - when tax has been paid by way of debit note to the Cenvat credit account and such credit was available all throughout during the due dates for payment of tax, no interest is leviable. - interest set aside. Penalty - Held that: - there being no violation of the provisions of law, the penalty imposed is also set aside. Appeal allowed - decided in favor of appellant.

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• 2018 (5) TMI 550
  Erection, Commissioning and Installation - demand of service tax with interest and penalty - Held that: - the demand for the year 2004–08 totaling Rs. 57,718/- is not sustainable, in view of the specific exemption with respect to service provided to Railways under Section 65 (105) (25b) of the Act, wherein the work done with Railways is not includable in taxable service. Appellant had paid the admitted taxes and nothing more was found payable in the Order-in-Original - demand set aside - appeal allowed - decided in favor of appellant.

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• Central Excise

• 2018 (5) TMI 549
  Clandestine removal - demand based on documents recovered from third party - Held that: - the law is well settled that the Department is required to adduce clinching evidence of the nature of purchase of raw material, use of electricity, sale of final products, payment, realization of sale proceeds, mode and flow back of funds etc. - In the present case, no tangible evidences were produced by the Department to support the case that the goods were clandestinely removed from the factory. In absence of any corroborative evidence produced by the Department, substantiating clandestine removal of goods, the charges cannot be levelled against the appellants for confirmation of the duty demand and for imposition of penalties. Demand do not sustain - appeal allowed - decided in favor of appellant.

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• 2018 (5) TMI 548
  Time limitation - the demand for the period 1994-95 to 1997-98 has been raised vide show-cause notice dated 30.09.1999 - sub-contract - liability of duty - Held that: - In the case of Craft Interiors (P) Ltd. Vs. CCE, Bangalore [2008 (6) TMI 122 - CESTAT Bangalore], Tribunal on similar issue has held that demand should be limited to normal period - the demand cannot be sustained on account of limitation - appeal allowed - decided in favor of appellant.

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• 2018 (5) TMI 547
  Penalty u/r 26 of CER 2002 on Managing Director Shri A. Ravindranath - Held that: - once the appeal of the firm has been allowed on merit, then the penalty on the Managing Partner cannot be imposed under Rule 26 of the CER - penalty on the Managing Partner u/r 26 of the CER 2002 merely on the ground that he has not filed a separate appeal is not sustainable - appeal allowed - decided in favor of appellant.

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• 2018 (5) TMI 546
  CENVAT credit - scrap - case of Revenue is that scrap is not an input for the manufacture of final product and no manufacturing process was carried out on the scrap received by the appellant and therefore, the CENVAT credit taken on the scrap is not permissible - Held that: - in the present case it is a fact that the iron and steel was directly supplied to the job worker who availed credit and processed and made semi-finished stampings and some scrap was generated in the process, which was cleared to the appellant on payment of duty and thereafter, the appellant also cleared the scrap on payment of duty which is higher than the one he claimed as CENVAT credit. It is also a fact that the appellant has paid higher duty as scrap than he claimed as CENVAT credit. Further, the entire transaction, in the present case, is revenue neutral as the duty has been paid on removal of scrap on which the credit was availed. In the case of PSL Holdings Ltd. vs. CCE [2003 (7) TMI 117 - CESTAT, MUMBAI], it was held by the Tribunal that utilisation of credit for payment of duty which was not required to be paid, credit was effectively reversed and the Revenue cannot once again ask for reversal of credit - In the present case also, the appellant has availed CENVAT credit on scrap received from the job workers based on the duty paid document and while at the time of clearance of the same, the appellant paid duty at the time of clearance which can be treated as reversal. CENVAT credit allowed - appeal allowed - decided in favor of appellant.

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• 2018 (5) TMI 545
  Refund claim - export of goods - Time Limitation - Section 11B of the Central Excise Act - Held that: - these cases relates to export of goods and not the export of services and in the case of export of goods, the Hon’ble Madras High Court in the case of M/s. GTN Engineering (I) Ltd. [2010 (8) TMI 314 - CESTAT, CHENNAI] has considered the issue of limitation as prescribed u/s 11B for claiming the refund under Rule 5 of CCR, 2004. The Hon’ble High Court held that time period of one year should be reckoned from the date of export of goods. Cases are remanded back to the original authority to pass de novo order regarding the refund claim - appeal allowed by way of remand.

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• 2018 (5) TMI 544
  CENVAT credit - input services - transportation provided to the appellant’s employees to and fro their workplace - Held that: - the Tribunal in the case of Marvel Vinyls Ltd. [2016 (11) TMI 1126 - CESTAT NEW DELHI] has considered the issue after the amendment in the definition of input service after 1.4.2011 and held that As such the interpretation of the lower authorities that motor vehicle are not capital goods for the services recipient cannot be appreciated in as much as motor vehicles are admittedly capital goods in terms of the Rule 2 (A) of Cenvat Credit Rules - credit is allowed. Appeal allowed - decided in favor of appellant.

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• 2018 (5) TMI 543
  Refund claim - excess payment of duty under PLA - Held that: - the appellant have paid the service tax on the supplementary invoice dated 31.12.2013 by the landlord and thereafter, recasted the PLA and filed the refund claim on the ground that they are entitled to get the refund as the appellant is not liable to pay the excise duty in view of the N/N. 11/2013-CE dated 28.2.2013. Scope of SCN - time limitation - Held that: - in the SCN, there is no allegation regarding the time bar raised by the appellant - finding of the Commissioner (A) is beyond the show-cause notice and is not tenable under law. Appeal allowed - decided in favor of appellant.

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• 2018 (5) TMI 542
  Finalization of provisional assessment - adjustment of excess paid duty with short paid duty - Held that: - the appeal is devoid of merits as first appellate authority in the impugned order has correctly come to the conclusion, by addressing the issue from the provisions of Rule 7 of the Central Excise Rules 2002 - It can be seen that the law as settled is correctly followed by the first appellate authority. Appeal dismissed - decided against Revenue.

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• 2018 (5) TMI 541
  Penalty - excise duty with interest paid belatedly - Held that: - As the entire duty liability with interest is discharged, appellant need not be visited with the penalty more so in such a situation wherein he is a SSI, hence finding of appellate authority as penalties concerned is correct and needs to be accepted and concurred with - appeal dismissed - decided against Revenue.

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• 2018 (5) TMI 540
  Payment of the duty liability in cash on consignment basis - Rule 8(3A) of the Central Excise Rules - Held that: - the Adjudicating Authority is correct and in the case in hand has considered the entire factual matrix in its correct perspective and came to a conclusion that there is no need for confirmation demands on duty which were debited in CENVAT credit by the main appellant and also there is no necessity to imposes on the respondents - appeal dismissed - decided against Revenue.

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• 2018 (5) TMI 539
  CENVAT credit - fake invoices - refractory bricks purchase from SRPL but delivered directly to RINL (VSP) on a invoice that indicated discharge of duty liability - whether RRL is eligible to avail CENVAT credit of the duty paid by SRPL or otherwise? - Held that: - Admittedly, the transaction was back to back and there was no manufacturing activity of the bricks in RRL is factory for which Central Excise duty needs to be discharged - It is settled position, of ineligible CENVAT credit, if any, is reversed of there is discharge of duty liability on the goods which were presumably not manufactured in the factory premises, accordingly there is no need to confirm the demands. The demands raised along with interest and also the penalty imposed on RRL set aside - appeal allowed - decided in favor of appellant.

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• 2018 (5) TMI 538
  CENVAT credit - demand of 5%/10% of the value of the exempted final products cleared from the factory premises - Rule 6(3) of CENVAT Credit Rules, 2004 - Held that: - The Adjudicating Authority has specifically recorded that the exempted goods were cleared to 100% EOU and also that no credit was availed on the inputs which are used for manufacturing of leaflets - the above findings are correct and are inconsonance with the law as settled by the various decisions and more so by the Hon’ble High Court of Bombay in the case of Repro India Ltd. [2007 (12) TMI 209 - BOMBAY HIGH COURT] - appeal dismissed - decided against Revenue.

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• 2018 (5) TMI 537
  Penalty u/s 11 AC of the Central Excise Act, 1944 - extended period of limitation - It is the case of the Revenue that appellant assessee could not availed CENVAT credit of MS Drums as the process of repacking does not amount to manufacture - Held that: - repacking from bulk packs to smaller packs would amount to manufacture and appellant cannot be faulted with the bonafide impression that they may have to discharge Central Excise duty on the repacked Styrene Monomer and accordingly availed the CENVAT credit on the MS Drums. It is undisputed that the appellant assessee had discharged the duty liability on Styrene Monomer cleared in MS Drums as a manufactured product. If the appellant discharged the Central Excise duty, he is eligible to avail the CENVAT credit which has been procured and having discharged the duty liability on the finished goods, they had in affect reversed the CENVAT credit availed by them on MS Drums. Penalty cannot be levied - appeal allowed - decided in favor of appellant.

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• 2018 (5) TMI 536
  CENVAT credit - whether the appellants herein are eligible to avail CENVAT credit on MS Plates, MS Channels and angles, SS Sheets, MS Chequer Coils, MS Flats, welding electrodes, bolts, nuts and screws used in the appellants manufacturing premises or otherwise? - Held that: - It is a fact that CENVAT credit of Central Excise Duty paid on MS flats, angles etc. are availed and are undisputedly used for fabrication of various machineries and supporting structures - the issue has been settled by Hon’ble High Court of Gujarat in the case of Mundra Ports & SEZ Limited [2015 (5) TMI 663 - GUJARAT HIGH COURT], where it was held that these items are inputs and Central Excise duty paid on these inputs are eligible for availment of CENVAT credit under rule 2(k) of CENVAT Credit Rules, 2004, prior to 07.07.2009. Appeal allowed - decided in favor of appellant.

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• 2018 (5) TMI 535
  CENVAT credit - SS Plates, Sheets, Coils etc. used for fabrication of various vessels and tanks which are further put to use in the factory premises - denial on account of nexus - Held that: - all goods which are used in the factory by the manufacturer of final products are eligible for availment of CENVAT credit - the provisions of Rule 2(k) of CENVAT Credit Rules are very clear, the denial of CENVAT credit to appellant on SS Plates, Sheets and Coils is totally negating the spirit of CENVAT credit on the inputs used in the factory premises of the assessee. Credit allowed - appeal allowed - decided in favor of appellant.

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• 2018 (5) TMI 534
  Remission of duty - normal loss - molasses stored in steel tanks - validity of SCN - Held that: - the SCN is in gross violation of the Board Circular No.261/15–CC/1/80–CX–8 dated 06.02.1982 - the SCN had been issued belatedly by way of change of opinion, almost after three years of filing application for remission - the extended period of limitation is not available and that the show cause notices are not maintainable - appeal allowed - decided in favor of appellant.

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• 2018 (5) TMI 533
  Whether the appellant Shivashakthi Bio Planteec Limited is required to discharge duty on micronutrient fertilisers for the period July 2007 to March 2013 or otherwise? - duty on repacking of single micronutrients - penalties - Held that: - the said micronutrient fertilisers would fall under chapter heading No. 3105 - demand of duty cannot be confirmed. Demand of duty on repacking of single micronutrients - Held that: - appellant would have been entertaining a bonafide belief as to the repacking would not amount to manufacture and no excise duty is payable as the larger pack which were procured by the was cleared by manufacturers without discharging excise duty as non excisable and repacked products being same are also non excisable. This bonafide belief needs to be accepted. The demand within the limited period for this activity of repacking needs to be upheld alongwith interest - penalty set aside. Appeal disposed off.

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• 2018 (5) TMI 532
  Scope of SCN - Classification of note book cover / wrapper - whether classifiable under CETA 4820 or under CETA 4901? - Held that: - Department has suo motu gone ahead attempting to change classification without issue of SCN. Further, even after the original authority had negatived department's change in classification, at the appeal stage before Commissioner (Appeals), yet another classification under CETA 4805 was proposed by the department - appeal dismissed - decided against Revenue.

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• 2018 (4) TMI 2004
  CENVAT credit - capital goods received prior to the date of registration - Held that: - it is evident from a plain reading of Rule 6(4) that it carves out an exception with respect to the factories or the assessees whose product is otherwise dutiable but are enjoying exemption based upon value or quantity of clearance in a Financial Year - Learned Commissioner have erred in holding that the appellant is not entitled to the Cenvat credit as they were not manufacturing any excisable goods, prior to the date of registration - appeal allowed - decided in favor of appellant.

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• CST, VAT & Sales Tax

• 2018 (5) TMI 531
  Penalty - the dealer had not produced any recorded evidence for the production of Form-17 declaration and also failed to produce any copy of acknowledgment in token of submissions of Form-17 - Held that: - There is no dispute as to the factum of assessment order passed by the Commercial Taxes Officer and the respondent has received the objections along with the xerox copy of Form-17 and assessment order. In that event, he should have verified or caused to be verified the assessment as to whether Form- 17 produced by the dealer is genuine or not. The matter is remitted back to the respondent to consider the claim of the petitioner on the basis of xerox copy of Form-17 produced to him - appeal allowed by way of remand.

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• 2018 (5) TMI 530
  Levy of Purchase tax on export sale - Section 3(4) of TNGST Act - Form XVII - Held that: - this Court in Tube Investment of India Ltd., v. State of Tamil Nadu [2010 (10) TMI 938 - MADRAS HIGH COURT], allowed the appeal filed by the dealer by stating that since the export sale is fully covered by the definition of sale under Section 2(n) read with Explanation 3(a) of the TNGST Act, the Assessing authority cannot levy tax under Section 3(4) of the Act - tax cannot be levied - appeal dismissed - decided against Revenue.

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