Newsletter: Where Service Meets Reader Approval.
TMI Tax Updates - e-Newsletter
June 21, 2017
Case Laws in this Newsletter:
Income Tax
Customs
Corporate Laws
Service Tax
Central Excise
CST, VAT & Sales Tax
TMI SMS
Articles
News
Notifications
Central Excise
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18/2017 - dated
19-6-2017
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CE (NT)
Notifying the date by which the Notification No.14/2017 CE (NT) dated the 9th June 2017 shall come into force
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17/2017 - dated
19-6-2017
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CE (NT)
Notifying the date by which the Notification No.13/2017 CE (NT) dated the 9th June 2017 shall come into force.
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16/2017 - dated
19-6-2017
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CE (NT)
Notifying the date by which the Notification No.12/2017 CE (NT) dated the 9th June 2017 shall come into force.
GST
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06/2017 - dated
19-6-2017
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CGST
Modes of verification under CGST Rules, 2017
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05/2017 - dated
19-6-2017
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CGST
Seeks to exempt persons only engaged in making taxable supplies, total tax on which is liable to be paid on reverse charge basis
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04/2017 - dated
19-6-2017
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CGST
Common Goods and Services Tax Electronic Portal - www.gst.gov.in
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03/2017 - dated
19-6-2017
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CGST
CGST Rules, 2017 on registration and composition levy
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02/2017 - dated
19-6-2017
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CGST
Jurisdiction of Central Tax Officers - CGST officers
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01/2017 - dated
19-6-2017
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CGST
Certain sections of the CGST Act, 2017 came into force w.e.f. 22.06.2017 - i.e Definitions, Administrations, Composition, Registration, Migration, Common Portal, Power to make rule
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02/2017 - dated
19-6-2017
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IGST
Seeks to empower the Principal Commissioner of Central Tax, Bengaluru West to grant registration in case of online information and database access or retrieval services provided or agreed to be provided by a person located in non-taxable territory and received by a non-taxable online recipient.
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01/2017 - dated
19-6-2017
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IGST
Certain sections of the IGST Act, 2017 came into force w.e.f. 22.06.2017 i.e Definitions, Officers, Registration, Application of certain provision of CGST to IGST, Power to make rules
Law of Competition
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F. No. 5/20/2011-CS - S.O. 1933(E) - dated
16-6-2017
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Competition Law
Central Government exempts the Vessels Sharing Agreements of Liner Shipping Industry for a period of one year with effect from the 20th June, 2017
Highlights / Catch Notes
GST
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Govt all set to ring in GST at stroke of June 30 mid-night
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Seeks to empower the Principal Commissioner of Central Tax, Bengaluru West to grant registration in case of online information and database access or retrieval services provided or agreed to be provided by a person located in non-taxable territory and received by a non-taxable online recipient. - Notification
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Certain sections of the IGST Act, 2017 came into force w.e.f. 22.06.2017 i.e Definitions, Officers, Registration, Application of certain provision of CGST to IGST, Power to make rules - Notification
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Modes of verification under CGST Rules, 2017 - Notification
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Seeks to exempt persons only engaged in making taxable supplies, total tax on which is liable to be paid on reverse charge basis - Notification
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Common Goods and Services Tax Electronic Portal - www.gst.gov.in - Notification
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CGST Rules, 2017 on registration and composition levy - Notification
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Jurisdiction of Central Tax Officers - CGST officers - Notification
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Certain sections of the CGST Act, 2017 came into force w.e.f. 22.06.2017 - i.e Definitions, Administrations, Composition, Registration, Migration, Common Portal, Power to make rule - Notification
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Goods and Services Tax Notification issued in Central GST, Integrated GST, UT GST, Compensation Cess etc.
Income Tax
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Capital gains tax - it is not open to the Company to urge “Please ignore my separate existence and look at the persons behind me.“ If that be so, the Appellant/Company must opt for voluntarily winding up and then the shares being allotted to the individual members on liquidation would be governed by the family arrangement/settlement. - HC
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Excise duty refund - revenue or capital income - eligibility for deduction u/s 80IB - subsidy received by way of refund of excise duty for setting up new industrial undertaking is a capital receipt and not taxable as income - AT
Customs
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Refund of CENVAT credit - Since the appellant is into an export of manufactured goods, therefore he has shown the cenvat credit in ST-3 Returns and not disclosed the credit in ER-2 Return which is only a procedural requirement and does not disentitle him for the refund
Service Tax
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Intellectual Property Right services - trade mark is not registered in India - services received by the appellant-assessee are not covered under IPR service, under Section 65 (105) (zzr) of the Finance Act, 1994.
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The SCN was issued in 2008 for the period of 2004-2005 and 2005-2006 nowhere invoked extended period in relation to the wrong availment/utilization of Cenvat Credit. In the absence of express invoking of extended period in the show cause notice, the demand is completely barred by limitation.
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Under the scheme of the Cenvat Credit Rules, 2004, Service Tax paid on all those services which the appellant assessee has utilised directly or indirectly, in or in relation to manufacture of the final products is entitled to claim the credit.
Central Excise
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Transfer of utilisation of CENVAT credit - the manufacturer is allowed transfer of cenvat credit lying un-utilized in his accounts, to such, transferred, sold, merged, leased or amalgamated factory - HC
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Remission of duty - Rule 21 of Central Excise Rules, 2002 - Although everybody protects their goods from rain but when there was water logging of 4 to 5 feet, in that circumstances, it cannot be alleged that appellant was not diligent in storing the goods. Therefore, the said allegation for denial of remission claim is wage and baseless.
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Valuation - includibility - whether the ducting which is a sub system of a central air conditioning system is liable to central excise duty? - Held No
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SSI exemption - use of brand name of others - if the person who is using the brand name of another firm where he is a Director, Partner or Proprietor then it cannot be said that the assessee is using the brand name of other person - benefit allowed
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Cenvat Credit - input services - upto the place of removal - Even though the meaning of place of removal has to be considered to be factory gate, however, the Courts while interpreting the meaning of ‘input service’ laid emphasis on the condition of sale so as to ascertain whether the services rendered by the assessee was in relation to delivery of the manufactured/finished goods at the place of the buyer.
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Valuation - captive consumption - the samples are retained within the factory and hence not liable to duty inasmuch as the same have not been cleared from the factory - demand set aside.
Case Laws:
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Income Tax
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2017 (6) TMI 835
Reopening of assessment - determine the value of property - investment made by the partnership firm - DVO report relied upon - Held that:- The fact that the assessee transferred the business to the partnership firm on 20.09.2005 is undisputed. In fact, in the reference order calling for the report of the DVO, the Assessing Officer has himself referred to this date when the firm came into existence. Thus, so far as the petitioner is concerned, he had no further relation with the hotel project after 20.09.2005. If the report of DVO is therefore called for cost of construction for the valuation required for the period between 20.09.2005 and 31.03.2006, the Assessing Officer clearly had the investment made by the partnership firm in mind. It is surprising that despite clear terms of the reference to the DVO calling for his estimate of cost of construction during the period of 20.09.2005 to 31.03.2006, the DVO appears to have given his estimate of cost of construction during the period between 01.04.2004 and 01.07.2005 and estimated such cost at ₹ 1.82 crores. If the reference of the DVO was for a specific period, he could not have given the report for the period completely unrelated to the reference period. On what basis the DVO was prompted to give such report for a period anterior to one for which his opinion was called for, we are not sure. In our opinion, therefore, a report of the DVO itself was invalid since it travelled beyond the reference period - Decided in favour of assessee.
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2017 (6) TMI 834
Reopening of assessment - assessee was not fulfilling the conditions laid down under Section 80IA - Held that:- What can be seen from reasons is that though the Assessing Officer refers to the assessment of year 2009-10 for the purpose of his information, insofar as the year under consideration is concerned, he confined his reasons to one single aspect viz. of the assessee not fulfilling the necessary conditions for deduction. Literal reading of the reasons would imply that the Assessing Officer was not pressing in service the ground of deficiencies in the treatment of waste that the assessee was imparting, which he had noticed in the assessment year 2009-10, for the present year i.e. assessment year 2006-07. Further his reference to the assessee not fulfilling the conditions for claim of deduction is, by itself, rather vague and general reference. In our understanding, the reasons lack clarity. there was no failure on the part of the assessee to disclose necessary facts. The documents in the nature of contracts between the government and other agencies were very much part of the record. In a case where reopening of assessment is being resorted beyond the period of four years this would be relevant. Further, during the assessment pursuant to the first notice for reopening, the Assessing Officer had examined the claim of deduction under Section 80IA (4) of the Act. It may be that the Assessing Officer had only one of the units of the assessee in mind when such assessment was being framed. Nevertheless nothing prevented him from disallowing such deduction qua other units also if similar situation obtained. - Decided in favour of assessee.
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2017 (6) TMI 833
Capital gains tax - eligible transfer - transaction of transfer of shares by the assessee company in pursuance of family arrangement - assessee/company has a corporate veil - Held that:- in the present case, we are not concerned with the members of Mohota family who were parties to the family settlement, but with transfer of share done by the Company incorporated under the Companies Act having separate/independent corporate existence, perpetual succession and common seal. This Company is independent and distinct from it's members. The rationale for Section 47(v) of the Act in excluding a transfer of the entire share capital of a subsidiary to it's holding company which owns 100% of it's shares from being considered a transfer. In the present facts, we are not concerned with transfer between holding and subsidiary companies. It is not the case of the appellant that Section 47 of the Act is applicable. Further, lifting of corporate veil at the instance of the assessee would mean that it is denying it's corporate existence. This, after taking advantage of the separate existence of a Company under the Act. Therefore, after having incorporated the Limited Company and given it separate existence from it's share holders, it is not open to the Company to urge “Please ignore my separate existence and look at the persons behind me.“ If that be so, the Appellant/Company must opt for voluntarily winding up and then the shares being allotted to the individual members on liquidation would be governed by the family arrangement/settlement. Thus the Tribunal was correct in holding that the transaction of transfer of shares by the independent corporate entity was assessable to capital gain tax. - Decided in favour of the respondent/revenue and against the appellant/assessee
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2017 (6) TMI 832
Condonation of delay - Held that:- When the applicant has failed to explain the huge delay of 1564 days, more particularly, has failed to explain the delay for the period from the date of receipt of the order of the learned tribunal and the filing of rectification applications and there is a huge delay of 1564 days, both these applications deserve to be dismissed and are accordingly dismissed.
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2017 (6) TMI 831
Addition u/s 40A - Tribunal applying Rule 6DD(j) to disallow the claim in respect of payments made in excess of ₹ 10,000/- in cash - Held that:- Where the head office or the place from where all the business operations are controlled or directed is a village or town which has a banking facilities, even such transporter would not be covered by Rule 6DD(h) of the Rules. Therefore, in the present case the benefit of Rule 6DD(h) was not available and could not be extended to the appellant-assessee. A plain reading of Rule 6DD(h) of the Rules indicate that the Assessee has to furnish evidence so as to satisfy the Assessing Officer about the genuineness of the payments and the identity of the payee. In this case, the undisputed position is that Assessee was not able to satisfy the Assessing Officer with regard to the genuineness of the payment made to the transporters, contractors etc. inasmuch as the evidence in the form of bills etc. was not produced. Consequently, the claim of the appellant-assessee was correctly denied by the Authorities under Section 40A(3) of the Act read with Rule 6DD(h) of the Rules. - Decided against assessee.
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2017 (6) TMI 830
Accrual of income - receipt of grant - assessee trust received funds from the Government of India as per sanction of the President of India under the scheme of Support to Training and Employment Programme for women “STEP” - Held that:- Where the assessee was constituted by the Government of India for specific purpose of carrying the activities for the empowerment of women and the grants & advances disbursed by the Government to the assessee cannot be held to be the income of assessee since the said grants were released for specific purpose in the field of empowerment of women and the surplus, if any, is not assessable in the hands of assessee as income for the respective assessment years. Even where the assessee had shown the said amounts in the Receipts and Expenditure Account but the same cannot be held to be income of the assessee as no part of the said grants could be utilized by the assessee for any other purpose other than specific purpose, for which the same was granted. Accordingly, we direct the Assessing Officer to delete the addition - Decided in favour of assessee.
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2017 (6) TMI 829
Addition of opening capital carry forwarded from previous year - Held that:- If no evidence or material was produced before the authorities below to show how assessee was having availability of any fund with him or to have any opening capital balance addition is justified. In the absence of any evidence, it is difficult to accept the explanation of the assessee. It is a clear case of building capital and to show opening capital balance. Also suppose any assessee may declare any huge amount in cash flow statement in preceding year which was not subject to scrutiny assessment whether same could be extended benefit to the assessee, the answer would be that such attempt to build capital cannot be accepted unless there was some evidence of record to justify accumulative of funds or the availability of the opening capital balance. - Decided against assessee. Addition on account of sale of trees to Shri Khalil - Held that:- In the absence of any evidence to prove that assessee was owner of popular trees or he has actually sold the popular tree to Mr. Khali, no interference is called for in the matter. Similarly production of receipt and statement recorded by AO orally is not sufficient to discharge onus upon assessee to prove genuineness of the transaction in the matter and actual sale transaction of popular tree. In the absence of any evidence or material on record no interference is called for in the matter. - Decided against assessee.
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2017 (6) TMI 828
Excise duty refund - revenue or capital income - eligibility for deduction u/s 80IB - Held that:- Excise duty Refund was capital in nature since it was granted to achieve the purpose of acceleration of industrial development in the State and generation of employment which were public purposes and thus could not be construed as operational incentives. Thus it is settled that subsidy received by way of refund of excise duty for setting up new industrial undertaking is a capital receipt and not taxable as income. See M/s Shree Balaji Alloys & Others (2016 (4) TMI 1161 - SUPREME COURT ) and CIT Vs. Meghalaya Steels (2016 (3) TMI 375 - SUPREME COURT ). Addition on account of rebate and discount relating to purchase of material - eligibility for deduction u/s 80IB - Held that:- Identical issue of allowance of deduction u/s 80IB on rebates and discounts earned by the assessee on purchases made by it had arisen in the case of the assessee in assessment year 2010-11 wherein the I.T.A.T. had held that the assessee was entitled to deduction on the same. No change in facts have been brought to our notice by the learned D.R. from the assessment year 2010-11. In view of the same we see no reason to interfere in the order of the learned CIT (Appeals) who has allowed the assessee’s appeal. Addition on account of interest received on FDRs by denying deduction u/s 80IB on the same- Held that:- CIT (Appeals) after giving a categorical finding that out of the total interest credited to the Profit and Loss Account of ₹ 2,20,834/-, the assessee had not claimed deduction under section 80IB of ₹ 1,43,585/-, directed the Assessing Officer to allow deduction under section 80IB as per law after due verification. Therefore the contention of the Ld.DR that the assessee has been allowed deduction u/s 80IB on the balance portion of ₹ 77,249/-, we find is incorrect. At the same time the assessee has misconstrued the findings of the Ld.CIT(Appeals) to mean that the entire issue has been restored to the Assessing Officer to decide as per law, since the Ld.CIT(Appeals) has no powers to set aside a case to the AO, as per the provisions of section 251(1) of the Act, which deal with powers of the CIT(A)’s. But, we may add in the same breath, that it cannot be denied that the balance interest income of ₹ 77,249/- has not been dealt with by the Ld. CIT(Appeals). We therefore restore the issue of allowance of deduction u/s 80IB on the interest income of ₹ 77,249/-back to the file of the CIT(Appeals) to decide it afresh by passing a speaking order
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2017 (6) TMI 827
Disallowance u/s 14A - Held that:- Since the investment was made out of surplus funds, no further disallowance is required to be made u/s 14A of the Act as section 14A provides for disallowance of expenditure incurred in relation to income which does not form the part of the total income, meaning thereby, there should be direct nexus between the actual expenditure incurred for the purpose of earning tax free income. The proximity cause of disallowance u/s 14A is its relationship with the tax exempt income. Wherever the expenses incurred has no relationship with the income not includible in the total income, there cannot be any occasion to invoke the provision for making the disallowance u/s 14A of the Act. In the light of the foregoing discussion, it can be concluded that the expenditure, which can be disallowed u/s 14A should be actually incurred. It is also noted that during assessment proceedings, the report of the accountant, specifying the basis for calculating the amount disallowable u/s 14A of the Act was submitted by the assessee and the Ld. Assessing Officer without rejecting the report mechanically applied Rule-8D and computed the amount of disallowance, which cannot be said to be justified. At best, the disallowance may be restricted as suo-moto made by the assessee. Thus, no further disallowance was required to be made.- Decided in favour of assessee. TDS credit - Held that:- Two parties deducted TDS but did not hand over the TDS certificate to the assessee. It was also explained that the assessee wrote to the Assessing Officer of those parties with respect to this claim but there was no response from the Assessing Officer also. The Ld. Counsel relied upon section 205 of the Act. In such a situation, we remand this ground to the file of the Ld. Assessing Officer to examine the claim of the assessee and if felt necessary, The Ld. Assessing Officer may call report from the Assessing Officer of those parties, as prayed by the assessee. The ld. Assessing Officer may also send notices to the concerned parties and examine them with respect to deduction of tax at source, if so required. The assessee be given opportunity of being heard with further liberty to furnish evidence, if any, in support of its claim. Thus, this ground of the assessee allowed for statistical purposes.
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2017 (6) TMI 826
Addition on unexplained credit - opening entry to the credit - no supporting evidence was furnished by the assessee - Held that:- The whole addition is on the premise that the assessee could not file confirmation from M/s Jade Investment and Leasing Pvt. Ltd. However in para 4(c) of the assessment order there is specific mention that this is a credit from the said party i.e. M/s Jade Investment and Leasing Pvt. Ltd. The assessee produced the books of accounts/audited account before the Assessing Officer to explain the amount. It is evidently clear that the impugned amount is opening balance and even before the Tribunal, the Ld. DR has clearly admitted that even the CIT(A) accepted the explanation of the assessee that this entry was on the basis of evidence at that time and directed the Assessing Officer to delete the addition made in the original assessment order, meaning thereby, the evidence was available during original assessment proceedings, which clearly proves that the amount was in the name of M/s Jade Investment and Leasing Pvt. Ltd. The assessee has duly explained that the opening entry to the credit of M/s Jade Investment and Leasing Pvt. Ltd. is only carried forward balance as on 31/03/1991, which is fortified by the copy of the audited balance sheet of the accounts of the assessee, thus, the opening balance cannot be treated as undisclosed income - Decided in favour of assessee.
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2017 (6) TMI 825
Addition u/s 68 - Held that:- We find that assessee miserably failed to furnish any relevant documents before the assessing authority and Ld.CIT(A). He filed some details of agriculture land holding by Mr.Manilal M. Patel and the source of ₹ 1 Lac given by Manilal Madhavdas was shown to be received from sale of agriculture produced. However, Ld.Counsel could not place any documentary evidences in the form of confirmation, income tax return and bank statements of Mr.Manilal Madhavdas before both the lower authorities. Where assessee has failed to prove the genuineness and creditworthiness of the alleged cash credit of ₹ 1 Lac from Mr.Manilal Madhavdas, we confirm the addition u/s.68 of the Act, at ₹ 1 Lac and call no interference in the order of Ld.CIT(A). Difference worked in capital a/c of Gopal Pipe & Hardware and capital a/c - Held that:- As during the course of assessment proceedings as well as before Ld.CIT(A) assessee was unable to reconcile the alleged difference of ₹ 78,000/- and submission made were general in nature. Even before the Tribunal, Ld.Counsel made a general reply and was unable to reconcile the two balance. We are therefore of the view that in the given circumstances asssessee has no plausible basis to reconcile the difference in the two accounts viz. one appearing in the personal balance sheet and another in the proprietorship concern. Thus we confirm the addition. Addition on account of house withdrawal - Held that:- Assessee has not brought on record the details of any family members and their income tax return as well as withdrawal made by them in their individual capacity. In the totality of the facts and considering the minimum standard of living required, we find the estimation of household expenses by AO to be justified. We therefore, do not find any reason to interfere with the order of Ld.CIT(A) and we therefore, dismiss this ground of the assessee. Penalty u/s.271(1)(c) - unexplained cash - addition u/s 68 - Held that:- As during the course of assessment and appellant proceedings as well as during the penalty proceedings assessee, in order to prove the identity, genuineness and creditworthiness of the alleged cash credit of ₹ 1 Lac, assessee could not find favour from any of the authorities in the quantum appeal. However, examining these facts in the light of the provisions of section 271(1)(c) where the assessee is deemed to be in fault if he conceals the particular of income or furnishes inaccurate particular of income. We notice that in the given case, assessee has filed the particular of income and also tried to prove its correctness by presenting various evidence. We are therefore, of the opinion that in these facts assessee should not have been visited by penalty u/s.271(1)(c) of the act. We therefore delete the penalty
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2017 (6) TMI 824
Addition u/s 68 - Held that:- No addition can be sustained on the strength of statement of Shri Gupta. Therefore, we hold that in absence of details about the nature of income he was surrendering in the case of a particular company or person of a group and particular head income the statement of Shri Gupta cannot be taken as valid basis for making addition u/s 68 of the Act for A.Y 2005-06. Assessment u/s 153A - Held that:- We hold that the addition made u/s 68 by the AO in the assessment order passed u/s 143(3) r.w.s 153A for A.Y 2005-06, were not based on any books of account or any other material not produced during the course of original assessment which alleged to have been found in the course of search or undisclosed income or property discovered during the course of search and seizure operation, then all the additions made in the assessment order deserve to be deleted as the assessment proceedings for A.Y 2005-06 were not abated but already completed on the date of search i.e. 24.9.2009. We hold that the impugned assessment order framed u/s 143(3) r.w.s 153A of the Act for A.Y 2005-06 dated 26.12.2011 is bad in law and thus the same is sustainable and deserve to be quashed and hence we quash the same.
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2017 (6) TMI 823
Allowability of deduction u/s 80IA(4) - Held that:- The issue under consideration is squarely covered by the decision of the coordinate bench of this Tribunal in the case of Annapurna Builders (2012 (11) TMI 1214 - ITAT HYDERABAD). DR neither controverted this fact nor brought any contrary decision in this regard. Therefore, we uphold the order of the CIT(A) in allowing the assessee’s claim of deduction u/s80IA(4)(iii) as his decision is in consonance with the decision of the coordinate bench. Disallowance u/s 40(a)(ia) - Held that:- Section 40(a)(ia) is applicable only to the expenditure which is payable as on 31st March of every year and cannot be invoked to disallow the amounts which have already been paid during the PY, without deducting the tax at source. Since the assessee has already paid the amount during the PY and no amount is there to be payable as on 31st March, we uphold the order of CIT(A) and dismiss the ground raised by the revenue on this issue.
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2017 (6) TMI 822
Deduction u/s 36(1)(viia) - Held that:- Assessee has claimed 36(1)(viia) deduction @ 10% on rural advances in its computation of income and carried forward the loss from business. We find that information of provision for bad and doubtful debts are not placed on record before us. Therefore, it is appropriate to remit the matter back to the file of AO with a direction to find out whether assessee has created any provision for bad and doubtful debts and if so, following the judicial pronouncements, he is directed to allow deduction u/s 36(1)(viia) to the extent assessee has created provision for bad and doubtful debts in its books of account. Accordingly, grounds are allowed for statistical purposes. Deduction of interest which was not realized on NPAs - Held that:- We direct the AO to delete the addition made towards interest on NPAs. Accordingly, this ground is allowed in all the AYs under consideration. Outstanding liability of dividend payable - Held that:- We are in agreement with the ld. AR that dividend is appropriation of profit after subjected to tax and it is not a charge on P&L A/c. Therefore, the above outstanding liability cannot be treated as income of the assessee. Accordingly, we uphold the decision of the CIT(A) and dismiss the ground raised by the revenue in all the AYs under consideration. Disallowance not obtained the license from the RBI to run the bank as per the provision of section 22 of the Banking Regulation Act, 1949 - Held that:- CIT(A) has not brought complete facts on record in his findings. Therefore, it needs to be examined properly by the lower authorities, hence, we remit this issue back to the file of the CIT(A) for further verification and adjudication of the issue. Accordingly, this ground is allowed for statistical purposes.
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2017 (6) TMI 821
Non setting off carried forward business loss against profit earned by the assessee on sale of depreciable asset u/s 50 - Held that:- The assessee is entitled to set off of brought forward business losses against the capital gains, thus, the observation of the Ld. Commissioner of Income Tax (Appeal) that contrary decision, mentioned in the order, were not considered is of no help to the Revenue because, the coordinate Bench duly considered the decision of Hon'ble Gujarat High Court in CIT vs Milind Trading Co. Pvt. Ltd. (1993 (12) TMI 22 - GUJARAT High Court ) as well as Hon'ble Apex Court in CIT vs Cocanada Radhaswamy Bank Ltd.[1965 (4) TMI 11 - SUPREME Court ]. Even otherwise, the ratio laid down in the order of the Tribunal in the case of Nirmal Plastic Industries and Shri Padmavati Shrinivasa Cotton Ginning and Processing Factory (2009 (3) TMI 246 - ITAT VISAKHAPATNAM) further supports the case of the assessee. - Decided in favour of assessee. Disallowance of business loss/bad debt - Held that:- In view of the amendment in the taxation laws with effect from 01st April, 1989, the requirement of demonstrating that the debts has become bad has been dispensed with and only requirement remains that it should be “written off” in books of accounts of the assessee, which has been further clarified by CBDT Circular No.551 dated 23/01/1990. Our view find support from the ratio laid down in CIT vs Brilliant Tutorials Pvt. Ltd. (2007 (1) TMI 147 - MADRAS High Court ). Hon’ble Apex Court, later on, in T.R.F. Ltd. vs CIT (2010 (2) TMI 211 - SUPREME COURT ), considering the provision of section 36(1)(vii), prior to April, 1, 1989 and post amendment held that it is not necessary for the assessee to establish that the debt, in fact, has become irrecoverable. Mere written off in its accounts is enough, thus, following the aforesaid we allow the ground of the assessee.
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Customs
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2017 (6) TMI 794
Jurisdiction of Directorate of Revenue Intelligence (DRI) - power to issue SCN - Held that: - sub-section 11 was inserted under section 28 of the Customs (Amendment and Validation) Act, 2011 dated 16.09.2011, assigning the functions of proper officers to various DRI officers with retrospective effect - Later on, i.e. for the period subsequent to the amendment, the matter i.e. the DRI officers having the proper jurisdiction to issue the SCN or not had come up before the Hon’ble Delhi High Court in the case of Mangali Impex vs. Union of India [2016 (5) TMI 225 - DELHI HIGH COURT], and the High Court inter alia, held that even the new inserted section 28(11) does not empower either the officers of DRI or the DGCEI to issue the SCN for the period prior to 8.4.11. Matter remanded to the original adjudicating authority to first decide the issue of jurisdiction after the availability of Hon’ble Supreme Court decision in the case of Mangli Impex and then on merits of the case but by providing an opportunity to the assessee of being heard - appeal allowed by way of remand.
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2017 (6) TMI 793
Refund of CENVAT credit - royalty - Scientific and Technical Consultancy Services - rejection on the ground that the appellants have not furnished any evidence to show that credit has been availed on the input service and the consultancy service received is not related to the appellants business of manufacture of goods - Held that: - the appellants have made a full disclosure of the cenvat credit availed and the same has been shown in ST-3 Returns. Since the appellant is into an export of manufactured goods, therefore he has shown the cenvat credit in ST-3 Returns and not disclosed the credit in ER-2 Return which is only a procedural requirement and does not disentitle him for the refund - the said service falls in the definition of input service under Rule 2(l) of Cenvat Credit Rules as the same is related to the business of the appellant - refund allowed - appeal allowed - decided in favor of appellant.
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2017 (6) TMI 792
Redemption of vehicle - import of used Volkswagen Beetle, Model 2004 - case of Revenue is that the impugned order allowing the redemption of the confiscated vehicle on payment of fine of ₹ 2,00,000/- is wrong because the vehicle was imported in violation of the Rules and the Foreign Trade Policy 2009-14 - Held that: - the learned Commissioner (Appeals) has given the reasoning for allowing the redemption of the confiscated vehicle on payment of fine and stated that adjudicating authorities are not empowered to impose conditions when granting the option to redeem confiscated goods on payment of fine. Powers have to be exercised strictly in accordance with the letter of the law if the foundation of Rule of Law is to continue to support our polity. In imposing the condition of re-export, the original authority has exceeded the jurisdiction conferred by the statute. I, therefore, set aside the portion of the order relating to re-export of the car as a condition of redemption - the reasoning given by the learned Commissioner is legal and there is no infirmity in it - appeal dismissed - decided against Revenue.
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2017 (6) TMI 791
Re-export of imported vehicle - redemption to be negated - valuation - import of Nissan Safari 1999 - it was alleged that the vehicle was imported in violation of the conditions of the policy - Held that: - the learned Commissioner has given sufficient reasons for allowing the appeal of the assessee for redeeming the confiscated vehicle on payment of fine of ₹ 1,50,000/- - it was held by him that The inconsistencies in the invoice having been enumerated by the original authority, it clearly does not mirror the transaction value In having resorted to Rule 9 after sequentially eliminating the applicability of Rule 4 to 8, and utilizing the red book price to arrive at the assessable value, whose validity has not been controverted in the appeal, he concurred with the adjudicating authority regarding the process followed for arriving at the re-determined value. He, therefore, rejected the appeal to the extent that it relates to assessable value. Impugned order upheld by dismissing the appeal of the Revenue - decided against Revenue.
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Corporate Laws
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2017 (6) TMI 788
Scheme of Amalgamation - Held that:- Scheme allowed. All the meetings connected with the scheme of equity shareholders, secured and unsecured shareholders of both the companies should be adhered to. In view of Sections 230(4) and 232(1) of the Companies Act, 2013 read with Rules 5 and 6 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 and Rules 20 and 22 of the Companies (Management and Administration) Rules, 2014, the Transferee Company, VISA STEEL LIMITED is required to provide the facility of postal ballot and e-voting to its shareholders. Accordingly, voting by equity shareholders of the Transferee Company to the scheme shall be carried out through (i) postal ballot and e-voting; and (ii) electronic voting system or ballot or polling paper at the venue of the meeting of the equity shareholders of the Transferee Company to be held on 30/06/2017.
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Service Tax
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2017 (6) TMI 820
Cargo Handling Service - demand - extended period of limitation - Held that: - if the goods are transported by road and loading-unloading has been done by the assessee, the same is covered under GTA service as clarified by CBEC Circular No. 104/07/2008-ST dated 06 Aug 2008 and Circular No. 186/5/2015-ST dated 05.10.2015 - The said circulars also clarifies that if the main service is Cargo Handling service, in that circumstances the service tax has to be demanded under the category of Cargo Handling services. Admittedly, the appellant has shown three invoices for handling charges which is recovered by them from the service recipient. In that circumstance, we hold that appellant is liable to pay service tax for these three invoices. Penalty u/s 78 - Held that: - It is clarified that if the appellant pays whole of service tax amount along with interest and 25% of service tax as penalty, within 30 days from the date of recipient of this order, the penalty shall be reduced to 25% of the amount of service tax. Appeal allowed - decided partly in favor of assessee.
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2017 (6) TMI 819
Valuation - royalty - includibility - Revenue is of the view that the said transfer of technical know-how is covered under Intellectual Property Right services - reverse charge mechanism - whether the royalty paid by the appellant-assessee under Industrial Property Right agreement is liable to service tax under Intellectual Property Rights service or not? - Held that: - to tax under service tax, under Intellectual Property Rights, such rights should be registered with Trademark/ Patent authorities. It is a fact on record that such trade mark is not registered in India - services received by the appellant-assessee are not covered under IPR service, under Section 65 (105) (zzr) of the Finance Act, 1994. Therefore, no service tax is payable by the appellant-assessee. Levy of service tax - IPR service - Held that: - the agreement is dated 11.03.2002 whereas the levy of tax under IPR service has come into force on 10.09.2004. As the agreement is executed on 11.03.2002, prior to introduction of IPR Service, the demand of service tax is not sustainable. Appeal allowed - decided in favor of assessee.
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2017 (6) TMI 818
Management Consultancy Service - Manpower Recruitment Service - demand of tax for professional capacity for the period 1998-2002 - Held that: - There is no dispute that Management Consultancy Service is not mentioned in clause (i) to (xi) of the said notification. So, the appellant are eligible to the benefit of the said notification prior to 01.08.2002 - The appellant is eligible for exemption under notification as per Board's Circular No.55/98-ST - demand not sustained - appeal allowed - decided in favor of appellant.
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2017 (6) TMI 817
Wrong availment/utilization of Cenvat Credit - duty paying invoices - invoices were not in the name of their registered premises at Gurgaon - whether the Cenvat Credit taken in respect of invoices of unregistered premises of an assessee can be allowed or not? - Held that: - the issue is no longer res integra and has been held in the many judgments of this Tribunal in favour of the assessee on the ground that it is remediable defect - reliance placed in the case of M/s. Allspheres Entertainment Pvt. Ltd. Versus CCE, Meerut [2015 (8) TMI 953 - CESTAT NEW DELHI], where it was held that In the absence of any such dispute regarding availment of services and their utilization for payment of service tax or proper accounting of the same, the denial of Cenvat Credit of service tax paid by Nainital office of the appellant on the sole ground that the invoices issued are in the name of the appellants unregistered office at Delhi is unjustified. Extended period of limitation - Held that: - the SCN was issued in 2008 for the period of 2004-2005 and 2005-2006 nowhere invoked extended period in relation to the wrong availment/utilization of Cenvat Credit. In the absence of express invoking of extended period in the show cause notice, the demand is completely barred by limitation. Appeal allowed - decided in favor of appellant.
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2017 (6) TMI 816
Penalty u/s 76 and 78 - the appellants have discharged a substantial portion of tax liability before the issue of notice, the notice itself as per Section 73(3) should have been limited to the unpaid tax - Held that: - The Commissioner (Appeals) has given proper justification for dropping the penalty under Section 76 and 78 - appeal dismissed - decided against Revenue.
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2017 (6) TMI 815
CENVAT credit - input service - Outdoor Catering Services - extended period of limitation - penalty - Held that: - As per inclusive definition of input service [Rule 2(l)] all activities relating to business are input services. The definition does not say activities relating to business pertaining to manufacture or provision of output services. Thus all input services used in activities relating to business are input services. The appellant assessee is availing outdoor catering services in the canteen as per obligations under Factories Act, 1948. Failure to do so would entail penal consequences under Section 46 of the Factories Act, 1948. Therefore, under the scheme of the Cenvat Credit Rules, 2004, Service Tax paid on all those services which the appellant assessee has utilised directly or indirectly, in or in relation to manufacture of the final products is entitled to claim the credit. Appeal allowed - decided in favor of assessee.
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Central Excise
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2017 (6) TMI 814
Utilisation of CENVAT credit - Whether in the facts and circumstances of the case, the Tribunal was right in coming to the conclusion that the respondent/ Assessee was entitled to avail of, un-utilized cenvat credit in terms of Rule 10 of the CCR, 2004? Held that: - A mere perusal of sub-Rule (1) would show that transfer of cenvat credit is available to a manufacturer in several situations: First, when the manufacturer of final products, "shifts" his factory to another site. Second, when, the factory is transferred on account of : "change in ownership" or on account of sale, merger, amalgamation, lease or transfer of factory to a joint venture, with specific provision for transfer of liabilities of such factory - It is, in these situations, the manufacturer is allowed transfer of cenvat credit lying un-utilized in his accounts, to such, transferred, sold, merged, leased or amalgamated factory. Appeal dismissed - decided against Revenue.
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2017 (6) TMI 813
Valuation - under-invoicing of products - veneers - mis-declaration of higher quality veneers as low quality veneers - scope of SCN - The appellants rebutted the allegation in the SCN and contended that the allegations were based on assumptions and presumptions - Held that: - the allegation of under invoicing is well established on the basis of the investigation done by revenue. The seized records indicate both the recovery of billed amounts as well as additional amounts recovered as OA by cash - The statement of other employees of NVP not only fully corroborates and supports the documents recovered, but also clearly brings out the fact that NVP was recovering amounts in addition to invoiced prices which were not part of the assessable value of the goods for purposes of charging excise duty. The accessed private records were in fact maintained by the staff of the office and contained information correlatable to the invoices which are statutory records. Consequently, these records cannot be ignored and can be made basis for confirming the allegation of undervaluation. With effect from 01.07.2000, the concept of value in Section 4 of Central Excise Act was changed. The concept of transaction value has been introduced w.e.f. 01.07.2000. Transaction value refers to the actual amount charged for the transaction - By definition, a necessary concomitant of transaction value is that the price should be the sole consideration for the sale. Thus, in a scenario where the buyer has to necessarily pay an amount in cash over and above the prices indicated in the invoices, as was the case w.r.t. the appellants, the invoice values cannot be regarded as transaction values. This is because one of the necessary conditions for the existence of a transaction value on each removal at the factory gate is not satisfied. The question before us is whether, on the basis of available evidence, can we come to the conclusion that the goods were undervalued and whether duty demand is justified. It is very well established that in quasi-judicial proceedings, as in civil cases, the principle to be applied to evaluate the evidence is preponderance of probabilities. The investigation done by the Revenue has established the allegation of underinvoicing. Consequently, the demand of differential duty as confirmed by the ld. Commissioner in the impugned order is upheld. Appeal dismissed - decided against appellant.
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2017 (6) TMI 812
Remission of duty - Rule 21 of Central Excise Rules, 2002 - rejection on the ground of Non filing of remission application by the appellant, Non-filing of quantification of shortages of goods lost in flood, Withdrawal of claim of remission by the appellant, appellant was not due diligent in storing their goods - Held that: - As there is no prescribed proforma for filing application for remission under Rule 21 of Central Excise Rules, 2002, therefore, the letter dated 04.08.2004 is an application for claiming remission of duty under Rule 21 of the Rules. Therefore, on that ground remission claim cannot be rejected. Rejection on the ground that Non-filing of quantification of shortages of goods lost in flood - Held that: - As there is no contrary evidence produced by the Revenue to show that the shortage are not on account of goods lost in flood. In that circumstance, the benefit of doubt goes in favor of the appellant by holding that there was a shortage of goods lost in flood involving duty of ₹ 10,30,874/- - rejection not valid. Rejection on the ground of Withdrawal of claim of remission by the appellant - Held that: - In the absence of any evidence on record that remission claim filed by the appellant on 04.08.2004 has been withdrawn, merely on the basis of intent, it cannot be said that appellant has withdrawn the remission claim. Therefore, on that ground remission claim cannot be rejected. Rejection of remission claim on account of that appellant was not due diligent in storing their goods - Held that: - Although everybody protects their goods from rain but when there was water logging of 4 to 5 feet, in that circumstances, it cannot be alleged that appellant was not diligent in storing the goods. Therefore, the said allegation for denial of remission claim is vague and baseless. Whether the Insurance claim includes the excise duty or not? - Held that: - Admittedly, the goods lying in the factory premises has not suffered duty at that time as the duty is payable at the time of clearance of the goods. In that circumstance, it is obvious that the goods which lying in stock are not duty paid and no duty component was involved in the claim of insurance. Therefore, rejection on this ground is also not sustainable. The remission claim filed by the appellant is correct and appellant is entitled to claim the remission of duty of ₹ 10,30,874/- and is sanctioned - appeal allowed - decided in favor of appellant.
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2017 (6) TMI 811
SSI exemption - benefit of N/N. 108/95-CE dated 28/08/1995 - denial on the ground that the machineries have not been supplied to the Project Implementing Authority but to the contractors only - Held that: - similar issue decided in the case of M/s JCB India Ltd. Versus CCE, Delhi-IV [2017 (1) TMI 1227 - CESTAT CHANDIGARH], where it was held that Merely, on the ground that the goods have been supplied to the contractor directly who has executed the project in question and after the implementation of the products the machine shall remain with the property of the contractor cannot be reasons to deny the benefit of notification - the appellant has correctly taken the benefit of exemption N/N. 108/95-CE dated 28.08.1995 - appeal allowed - decided in favor of appellant.
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2017 (6) TMI 810
Penalty - Interpretation of statute - N/N. 8/2003-CE dt. 1.3.2003 - amendment carried out in the notification w.e.f. 1.4.2003 - short payment of duty - extended period of limitation - Held that: - no valid reason has been cited for invoking the suppression clause of Section 11A - the appellant has been filing periodical returns in Form E.R-1 to the department and hence the grounds of suppression cannot be alleged against the appellant. In any case, the amendment to N/N. 8/2003 resulted in significant change in the method of computing aggregate value of clearance of excisable goods for home consumption. In view of this major change, that there were doubts and uncertainties in the financial year preceding the month. Penalties set aside - demand of duty with interest upheld - appeal allowed - decided partly in favor of assessee.
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2017 (6) TMI 809
Valuation - includibility - whether the ducting which is a sub system of a central air conditioning system is liable to central excise duty? - Held that: - the ducts are prepared and assembled to facilitate carrying cool air from the air handling apparatus. Such ducts become a part of the complete central air conditioning plant which is an immovable property - reliance placed in the case of SUVIDHA ENGINEERS (INDIA) LTD. Versus COMMISSIONER OF C. EX., DELHI [2004 (3) TMI 307 - CESTAT, NEW DELHI], where it was held that erection of ducts etc. at site could not be considered "excisable goods" - appeal rejected - decided against Revenue.
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2017 (6) TMI 808
Valuation - includibility - bought out items - whether value of certain items viz. oil quinching tank, washing machine, aluminia sieve shaker, blower for furnace, piping and manifold, jigs and fixtures, auto control systems and certain spares, to be included in assessable value or not? - Held that: - these goods are not supplied as accessories or parts which are used items of erection or commissioning of the furnace supplied by the appellant - there is no valid reason to charge excise duty on these components bought out and supplied by the appellant. Appeal allowed - decided in favor of appellant.
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2017 (6) TMI 807
Valuation - Section 4(1)(b) of the Central Excise Act, 1944 - The entire clearance was made to Pallavaram Unit. About 98% of the goods so cleared are consumed by the Pallavaram Unit for manufacture of various final products. 2% of the same are sold by Pallavaram unit as spares at a higher rate to various customers? - Held that: - no mens ria can be attached to the Appellants in respect of the said action by their Pallavaram Unit - the submission of the Appellant that the Pallavaram Unit while captively consuming in production 98% of the pumps supplied by the Appellant had sold the impugned items as replacement spares meet certain emergency requirements and had paid duty in respect of such removals on their selling price should have been positively taken into consideration by the Learned Adjudicating Authority, which has not been done - appeal dismissed - decided against Revenue.
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2017 (6) TMI 806
Default in payment of duty - Rule 8(3) of Central Excise Rules, 2002 - restriction in utilization of CENVAT credit - Held that: - the Commissioner (Appeals) has recorded in para 5 of the said order that the facts are not in dispute and that the contention put forth by the appellant are also not disputed - the relevant facts in this case are clearly disputed and need proper verification - appeal allowed by way of remand.
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2017 (6) TMI 805
SSI exemption - use of brand name of others - N/N. 8/2003-CE dated 01.03.2003 - Revenue was of the view that trade mark Basant is owned by M/s. Basant Mechanical Works, Ludhiana and the respondent is not entitled to used the brand name of other firm if they are availing benefit of SSI N/N. 8/2003-CE dated 01.03.2003 - Held that: - the respondent is a proprietary ship concern, who is using the brand name of a partnership concern, where the proprietor of the respondent firm is a partner - the fact of this case are identical to the facts in the case of Elex Industries [2003 (9) TMI 418 - CESTAT, NEW DELHI], wherein this Tribunal has held that if the person who is using the brand name of another firm where he is a Director, Partner or Proprietor then it cannot be said that the assessee is using the brand name of other person - benefit allowed - appeal dismissed - decided against Revenue.
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2017 (6) TMI 804
Shortage of stock - demand of duty - CENVAT credit - assessee was of the view that the stock taking was conducted on the basis of eye estimation - Held that: - appellant accepted the shortage of finished products and inputs during stock verification - demand of duty and interest is upheld. Penalty - Held that: - there is no material available on record for clandestine removal of the goods - The Hon’ble High Courts and the Tribunal in various decisions, held that sufficient evidence is required for clandestine removal of the goods - penalties set aside. Appeal allowed - decided partly in favor of assessee.
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2017 (6) TMI 803
Interpretation of statute - meaning and scope of the expression “place of removal” employed in the definition of “input service” under Rule 2(l)of CCR,2004 - CENVAT credit - input services - GTA service (outward freight) - place of removal - manufactured goods are cleared and delivered at the place of buyer - Held that: - taking note of Rule 5 of Valuation Rules, 2000 it is observed that the ‘place of removal’ and the ‘place of delivery’ are distinct places and the freight charges incurred from the place of removal to the place of delivery has to be excluded from the assessable value of the goods - where freight charge is incurred in delivery of the goods by the manufacturer, ‘place of removal’ invariably has to be the place from where goods are ultimately sold by the manufacturer. No doubt, by virtue of Rule 2(t) of CENVAT Credit Rules, 2004 the meaning of expression not defined therein has been borrowed from the Central Excise Act and the Rules made thereunder, but it has to be read in the context in which it has been used. Even though the meaning of place of removal has to be considered to be factory gate, however, the Courts while interpreting the meaning of ‘input service’ laid emphasis on the condition of sale so as to ascertain whether the services rendered by the assessee was in relation to delivery of the manufactured/finished goods at the place of the buyer. In most of these appeals, no specific finding has been recorded analyzing the evidences as to whether sale of the manufactured goods is at the factory gate or at the premises of the buyer as per the agreement for sale, purchase Order, invoice etc. - Thus, all these appeals need to be remanded to the original authority to examine the said aspect and then consider the eligibility of CENVAT Credit on outward freight (GTA services) - appeal allowed by way of remand.
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2017 (6) TMI 802
Natural justice - recovery proceedings against a dead person - Held that: - the appellant who is a sole partnership concern of Shri V.P. Viswanathan Nair who as per the death certificate has died on 29.05.2015 when the appeal was pending before the Tribunal - reliance was placed in the case of Shabina Abraham Vs. Collector of CE & Customs [2015 (7) TMI 1036 - SUPREME COURT], where it was held that no recovery proceedings can be initiated against the dead person - Since the appeal of the proprietor who has died during the pendency of the appeal has abated similarly the appeal filed by the Department is not maintainable on account of the death of the sole proprietor.
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2017 (6) TMI 801
Valuation - captive consumption - The assessee were drawing samples for testing quality of the product and were retaining such samples within the factory as control samples - The original authority had confirmed the demand for the reason that drawing of samples should be considered as captive consumption - Held that: - the samples are retained within the factory and hence not liable to duty inasmuch as the same have not been cleared from the factory - demand set aside. Quantity discounts - eligibility for deduction - Held that: - this scheme is evidently in the form of quantity discounts. Discounts in any form has been allowed as valid deductions under Section 4 of the Central Excise Act, 1944 - in the recent decision of the Tribunal in the case of Biochem Pharmaceutical Industries Vs. CCE, Mumbai-III [2016 (3) TMI 664 - CESTAT MUMBAI], a similar issue was examined and decided in favour of the assessee. It was held in the case that quantity discount was correctly claimed by the appellant as the same was claimed at the time of sale of the goods. Quantum of discount extended - the assessee s claim is that the excise duty paid per unit of bandage is already more than that payable after quantity discount - Held that: - the issue has been remanded to the original authority for re-quantification of demand in the light of Rule 5 of Central Excise Valuation Rules 2000. Appeal allowed by way of remand.
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2017 (6) TMI 800
Wast and scrap - job-work - includibility - demand on the ground that assessee had not included the value of unreturned scrap generated on account of the job work in the assessable value, worked out on cost construction method - Held that: - the value of scrap not includable in assessable value - reliance was placed in the decision of the apex court in the case of Commissioner Versus P.R. Rolling Mills Pvt. Ltd. [2010 (9) TMI 1072 - SUPREME COURT] - appeal dismissed - decided against Revenue.
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2017 (6) TMI 799
Refund claim of CENVAT credit - banking and financial services - cleaning activity - consulting engineering - outdoor catering - air travel agents - printer rental charges - reinforcement sprips lab charges - projector hire charges - business auxiliary service - management consultancy service - denial on the ground of nexus - Held that: - the various decisions rendered by the higher judicial fora where all the services have been specifically held to be input services - In the case of CCE vs. Ultratech Cements [2010 (10) TMI 13 - BOMBAY HIGH COURT], the Bombay High Court held that the definition of input service is very wide and not only covers services used directly or indirectly used in or in relation to the manufacture of final products but also includes other services which have direct nexus with the manufacture of final products. The appeals of the appellant subject to verification by the original authority - appeal allowed by way of remand.
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2017 (6) TMI 798
CENVAT credit - steel items such as MS plates, angles, bars and rods, rounds, sheets, flats etc. - denial on the ground that these steel items are neither inputs nor capital goods - Held that: - appellants have only claimed CENVAT credit of 35% on the total quantity of steel purchased which has been used in the manufacture of capital goods - the appellants have rightly availed the CENVAT credit on 35% of the steel which was used in the manufacture of capital goods. Extended period of limitation - Held that: - the entire demand is time barred as the department has not been able to bring in any evidence on record to show any intention on the part of the appellant to evade payment of duty. Appeal allowed - decided in favor of appellant.
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2017 (6) TMI 797
Short payment of tax - utilisation of CENVAT credit - Filing of revised return - contravention of Rule 8 of the Central Excise Rules 2002 - Held that: - there is no infirmity in the impugned order wherein the Commissioner has directed the original authority to accept the revised ER-1 for the month of October 2010 filed by the appellant subject to required scrutiny and seek clarification from the range officer to the extent necessary - Further the Gujarat High Court in the case of Indsur Global Ltd Vs UOI [2014 (12) TMI 585 - GUJARAT HIGH COURT] wherein Honon ble Gujarat High Court held Rule 8(3A) of the Central Excise Rules 2002 as ultra vires - appeal dismissed - decided against Revenue.
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2017 (6) TMI 796
CENVAT credit - steel and cement - whether the appellants are entitled to CENVAT credit availed on steel and cement used in the construction of storage silos and packing plant? - Held that: - in the definition of capital goods as contained in Rule 2(a) of CCR, 2004 storage tank has been specifically included in the definition of capital goods - the issue is squarely covered in favor of the appellant by various decisions wherein it has been specifically held that cement and steel used in the construction of packing plant is allowable as credit as the same fall in the definition of capital goods - appeal allowed - decided in favor of appellant.
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2017 (6) TMI 795
100% EOU - Refund of CENVAT credit - Banking and Other Financial Charges - Cargo Handling Services - denial on the ground that all the input services are not used in or in relation to the manufacture of goods - Held that: - both the input services viz. Banking and Other Financial Charges and also Cargo Handling Services fall in the definition of input service as held in the case of CCE, Nagpur Vs. Ultratech Cement Limited [2010 (10) TMI 13 - BOMBAY HIGH COURT] wherein the input service definition has given very wide interpretation to include any service in relation to business - in the absence of these input services it is very difficult for the appellant to affect the export of goods - appeal allowed - decided in favor of appellant.
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CST, VAT & Sales Tax
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2017 (6) TMI 790
Benefit of concessional rate of tax at 2% - denial for the reason that the Form C declaration covered more than one quarter, that is, recorded sales for the month in which delivery of goods had been made - the case of appellant is that benefit cannot be denied on the basis of Form C, if, otherwise, the transactions were genuine - whether the Form 'C' declarations filed by the petitioner/ Assessee, could be rejected, only on the ground that they capture the sale transactions relatable to the date, when the delivery of goods took place, as against, when they were despatched? Held that: - In terms of provisions of Section 8 of the 1956 Act, the petitioner/ Assessee was entitled to a concessional rate of tax, only if, sale was effected to a registered dealer, in another State and requisite Form 'C' Declaration obtained in that behalf are filed with the prescribed Authority. If, the genuineness of the transaction is not in doubt, then, merely because the Form 'C' declarations captured the transactions from the point of view of the date of delivery as against when they were despatched, cannot be the reason for rejecting the Form 'C' declarations. Circular dated 20.10.2015 would show that the Revenue itself has taken a view that technicalities, to which we have made a reference above, ought not to come in the way of acceptance of declaration forms. A case in point is, when, goods are despatched on the last day of the last quarter of a financial year and, they are recorded by the buyer in his record, based on the date of delivery or receipt and declaration is issued accordingly. In such circumstance, could it be said that the seller would not be given the benefit of the Form C declaration. Appeal allowed - decided in favor of appellant.
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2017 (6) TMI 789
Non-Service of notice before completion of assessment proceedings - natural justice - Held that: - notice issued to the appellant in the 'business address' was only supplementary, since a proper notice was issued in the residential address of the managing partner i.e. Abdul Azeez as well. Copy of the acknowledgment card is placed before this Court for perusal - On a perusal of the said document, it is seen that notice sent by registered post to the addressee i.e Managing Partner of the appellant was returned 'unclaimed' - the case of appellant with reference to non-service of notice to be set aside - appeal dismissed - decided against appellant,
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