TMI Tax Updates - e-Newsletter
September 28, 2017

Case Laws in this Newsletter:

Income Tax Customs Insolvency & Bankruptcy PMLA Service Tax Central Excise CST, VAT & Sales Tax Indian Laws

Articles

1. GST - Need for preserving data bases, documents relating to pre-GST regime

   By: Srikanthan S

2. Pure Agent concept in GST

   By: CA.VINOD CHAURASIA

3. ALL ABOUT INTERIM GST RETURN-3B

   By: Dr. Sanjiv Agarwal

4. Learning from a case of un-necessary litigation by assessee- just to challenge, in any how and any way manner validity of notice is not proper

   By: DEVKUMAR KOTHARI

News

1. GST yields ₹ 90,669 crore in August

2. GST Revenue Figures – As on 25th September, 2017

3. Insolvency and Bankruptcy Board of India (IBBI) registered National E-Governance Services Limited (NeSL) today as an Information Utility (IU) under the IBBI (Information Utilities) Regulations, 2017

4. Union Finance Minister releases book on Financial Management

5. Cabinet approves signing of (i) Inter-bank Local Currency Credit Line Agreement and (ii) Cooperation Memorandum relating to Credit Ratings by EDIM Bank under BRICS Interbank Cooperation mechanism

6. Cabinet approves signing and ratification of the Bilateral Investment Treaty between India and Belarus on investments

7. RBI Reference Rate for US $

8. To invite public comments for further simplification of starting a business (name reservation and incorporation) procedure in India- reg.

Notifications

GST - States

1. FA-3-33/2017-1-V-(109) - dated 22-9-2017 - Madhya Pradesh SGST

Amendments in the Notification No. FA-3-33-2017-1-V(42) dated the 29th June, 2017.

2. FA-3-65/2017-1-V-(108) - dated 21-9-2017 - Madhya Pradesh SGST

Exemption intra-State supply of heavy water and nuclear, fuels by the Department of Atomic Energy.

3. FA-3-42/2017-1-V-(107) - dated 21-9-2017 - Madhya Pradesh SGST

Amendments in this Notification No. FA-3-42-2017-1-V (53), dated the 30th June, 2017

4. FA-3-22/2017-1-V-(106) - dated 21-9-2017 - Madhya Pradesh SGST

Amendments in the Notification No. FA-3-32-2017-1-V(41), dated 29th June 2017,

5. FA-3-64/2017-1-V-(105) - dated 19-9-2017 - Madhya Pradesh SGST

The Madhya Pradesh Goods and Services Tax (Amendment) Rules, 2017

6. FA-3-63/2017-1-V-(104) - dated 18-9-2017 - Madhya Pradesh SGST

Recommendations of the Council TDS deduction tax from the payment made or credited to the supplier of taxable goods or services or both.

7. FA-3-62/2017-1-V-(102) - dated 15-9-2017 - Madhya Pradesh SGST

Exemption on handicraft goods.

8. FA-3-61/2017-1-V-(101) - dated 15-9-2017 - Madhya Pradesh SGST

State Level Screening Committee.

9. FA-3-55/2017-1-V-(103) - dated 15-9-2017 - Madhya Pradesh SGST

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

10. 30/2017-State Tax - dated 13-9-2017 - Maharashtra SGST

Extension of time limit for submission of return in FORM-GSTR-6 by Input Service Distributor for the month of July 2017.

11. 29/2017-State Tax - dated 13-9-2017 - Maharashtra SGST

Supersession of the Notification No. JC(HQ)-1/GST/2017/Noti/18/ADM-8, dated the 5th September 2017 - Time period for furnishing of details/return.

12. 34/2017-State Tax - dated 18-8-2017 - Maharashtra SGST

Due Dates for submission of return in Form GSTR-3B for the month of August,September,November and December 2017

13. 05/10/2017-FD(TAX) - dated 10-8-2017 - Manipur SGST

The Manipur Goods and Services Tax (Third Amendment) Rules, 2017.

Income Tax

14. 85/2017 - dated 26-9-2017 - IT

U/s 10(39) of IT Act 1961 - Central Government notifies the international sporting event, persons and specified income for the purpose of the said clause

Circulars / Instructions / Orders

GST - States

1. PWR/GST/2017/1/ADM-8. - dated 18-9-2017

To designate the Appellate Authority for the purpose of deciding appeals against the rejection of application for registration.

Customs

2. Instruction No. 13/2017 - dated 27-9-2017

Illegal import of fireworks/crackers - Judgment dated 12.09.2017 of the Hon'ble Supreme Court in Writ Petition (Civil) No.728 of 2015 - reg.

3. 39/2017 - dated 26-9-2017

Amendment to Customs Valuation Rules – Notification No. 91/2017 (NT) dated 26.9.17

4. 53 /2017 - dated 25-8-2017

Subject: Facility for Online Generation of Rotation Number by Shipping Lines/Agents - reg.

Highlights / Catch Notes

GST

• GST Revenue Collection Reaches Rs. 90,669 Crore by September 25, 2017.

  News : GST Revenue Figures - GST paid under different heads (upto 25th September, 2017) is ₹ 90,669 crore
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Income Tax

• Section 11 Exemption: Voluntary Donations for Student Admissions Cannot Be Denied; Non-Voluntary Donations May Be Disallowed.

  Case-Laws - AT : Exemption u/s 11 - admission of the students - the exemption cannot be denied in toto to the assessee with regard to the voluntary donations received by the assessee. Only such donations, which are admittedly not voluntary can be disallowed.
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• Funds Movement Not Deemed Dividend u/s 2(22)(e) of Income Tax Act Due to Accommodation Account Status.

  Case-Laws - AT : Deemed dividend u/s. 2(22)(e) - The account appeared to be in the nature of current adjustment accommodation account where there is movement of funds in both ways on need basis - the sum of can also not be regarded as deemed dividend u/s. 2(22)(e)
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• Court Evaluates Tax Exemption Eligibility u/s 11; Assessee's Non-Member Income Challenges Mutuality Principle.

  Case-Laws - AT : Eligibility for exemption u/s. 11 - proof of charitable activities - the income of the assessee from other non-members of the institution are more and as such the principle of mutuality is apparently not applicable in the case of the assessee.
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Customs

• Customs Authority Can Impose Fines Instead of Confiscating Prohibited Goods, Offering Flexible Penalty Options Under Customs Act.

  Case-Laws - AT : Absolute confiscation - even if the goods in question are considered as prohibited goods as defined under the Customs Act, the adjudicating authority may consider imposition of fine and need not invariably direct absolute confiscation of the goods.
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Service Tax

• Refund Eligibility for Exported Goods: No Direct Nexus Required Between Inputs and Final Products for Input Services Refund.

  Case-Laws - AT : Refund of input services - export of goods - for the eligibility of refund, the nexus between inputs or input service and the final goods/services has to be loser. There is no requirement of one to one co-relation between inputs and outputs
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Case Laws:

• Income Tax

• 2017 (9) TMI 1467
  Constitutionality of Sections 115 WA (2) and 115 WB (1) and 115 WB (2) of the Income Tax Act, 1961 as introduced by the Finance Act, 2005 - whether is ultra vires of Article 14, 19(1)(g) and 265 of the Constitution of India and as beyond the legislative competence of Parliament, in so far as the petitioner is concerned? - Petitioner as well as Revenue submitted that the declaration sought for in this Writ Petition has been now seized of by the Hon'ble Supreme Court and similar Writ Petition has been transferred to the Hon'ble Supreme Court from the other High Courts as well. Held that:- Considering the fact that the matter is now seized of by the Hon'ble Supreme Court, this Writ Petition can be disposed of with appropriate directions, leaving it open to the parties i.e. the petitioner as well as the Revenue to abide by the decision of the Hon'ble Supreme Court.The Revenue need not have any apprehension in this regard, as the Court proposes to safeguard the interest of the Revenue by passing the following orders: "The petitioner is directed to abide by the decision of the Hon'ble Supreme Court where the challenge to the impugned provisions are pending. It is made clear that in the event the Hon'ble Supreme Court upholds the impugned legislation and the Department initiates action or proceeds with the action already initiated, the petitioner/assessee is not entitled to plead limitation and the period during which this Writ Petition is pending as well as the period till the matter is decided by the Hon'ble Supreme Court, shall stand excluded for computation of limitation”.

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• 2017 (9) TMI 1466
  Reopening of assessment - non communication of reasons to believe - Held that:- It is the consistent case of the petitioner that the reasons were not communicated to them, and such a specific stand has been taken in the Writ Petitions, which were filed on 23.11.2005, i.e. much after the date on which, it is stated that the assessee received the letter, dated 14.11.2005. However, this Court does not propose to dwell further into such controversy, considering the fact that the Writ Petitions are of the year 2005, and the matters are remain pending for all these years, and order of interim stay has been operating. If the petitioner had been communicated with the reason for issuance of the impugned notices, then, they would have been in a position to subject their objections and proceed with the matter. Thus, without going into the controversy as to whether the petitioner has been communicated the reason for re-opening or not, there will be a direction to the respondent to communicate the reason for re-opening for both the assessment years 2002-03 and 2003-04 within a period of 15 days from the date of receipt of a copy of this order. On receipt of the reason for re-opening, the petitioner is directed to submit their objections within a period of 30 days therefrom.

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• 2017 (9) TMI 1465
  Validity of assessment - intimation sent under section 143(1) - assessment u/s 153A - whether intimation sent under section 143(1) for the assessment years 2002-03 to 2004- 05 fall in the category of completed assessments when there was no assessment made under section 143(3)? - Held that:- In the first place, question (i) was not raised by the Revenue in its appeals before the Income-tax Appellate Tribunal. Secondly, the fact remains that the Revenue chose the route of section 153A of the Act to proceed against the assessee. Having chosen that route, there had to be some incriminating material qua the assessee to justify the initiation of proceedings thereunder. There was none in the present case. In the circumstances, the question of examining whether the Revenue could instead have validly proceeded under section 147 of the Act is academic and need not be examined. The court declines to frame question (i) either. Additions made in the assessment orders - no incriminating material found during course of search cannot be sustained - Held that:- it is not in dispute that arising out of the same search proceedings, additions sought to be made in the hands of Ms. Meeta Gutgutia, wife of the assessee have been deleted by the Commissioner of Income-tax (Appeals) and the Income-tax Appellate Tribunal and the said orders were affirmed by this court by dismissing the Revenue's appeal by the decision in Principal CIT v. Meeta Gutgutia Prop. M/s. Ferns "N" Petals [2017]. Therefore, the court is not inclined to frame question (ii) as urged by the Revenue.

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• 2017 (9) TMI 1464
  Addition on account of Gross Profit ratio - G.P. rate determination - Held that:- It is an admitted fact that the AO worked out the average GP rate of the comparable units which were working in the same line and vicinity at 10.58%, and after considering this fact that the assessee incurred more expenses of Rs. 20/- to Rs. 30 per quintal higher than the purchases shown by the other similar units of the same vicinity. He, therefore, allowed a leverage of 1.58% to the assessee and applied the GP rate of 9%. CIT(A) also accepted this contention of the assessee that the trading account of the units with whom the AO had compared assessee’s account did not include certain expenses such as bardana, Jhonk, Mandi Fees and Purchase tax etc. Thus the action of the ld. CIT(A) for adopting the average GP rate of 10.58% shown by the comparable cases was not justified, particularly when, he had not also given any reason for not accepting the GP rate applied by the AO at 9%. Therefore, we modify the order of the ld. CIT(A) and direct the AO to apply the GP rate of 9% instead of 10.58% applied by the ld. CIT(A) and work out the addition, if any.

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• 2017 (9) TMI 1463
  Penalty u/s 271(1)(c) - disallowance of alleged bogus purchases - non providing cross examination - Held that:- We have observed that no cross examination was allowed of the said four parties to the assessee despite the assessee bringing on record his grievances before learned CIT(A) that the assessee was not allowed cross examination as is emanating from the appellate order of learned CIT(A) but at the same time the assessee has also not furnished addresses of these four parties nor proof of movement of goods from selling parties to the assessee is brought on record. At the same time the assessee has also admitted that in these cases supplies are obtained from one vendor and invoices are obtained from other vendor but the material was purchased which was utilized/consumed for business wherein additions have either been deleted or [email protected]% was brought to tax on these alleged bogus purchases by appellate authorities. Thus the assessee deserves one more opportunity and the matter/issue needs to be restored to the file of the AO for de-novo determination of the issue of leviability of penalty u/s 271(1)(c). The assessee be allowed to raise all contentions both on merits and on law before the AO which are kept open, which shall be adjudicated de-novo by the AO on merits in accordance with law.

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• 2017 (9) TMI 1462
  Validity of Assessment done in the name of a non-existing company - assessment passed in the name of the amalgamated company and the only reference if any to the amalgamating company is the PAN No- Held that:- Assessment order has been passed by the A.O, Mumbai, having jurisdiction over the amalgamated company and the mention of the PAN no. of the merged company is only to differentiate between the amalgamated and amalgamating companies for the period when both of them were in existence. Therefore, we are not in agreement with the order of the CIT(A) that the assessment has been done in the name of a non-existing company. Therefore, we set it aside. The Revenue’s appeal is accordingly allowed.

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• 2017 (9) TMI 1461
  Exemption u/s 11 - proof of charitable purposes - disallowance of donations received - voluntary donations received - Held that:- In the case before us, it is seen that the assessee has received donations from various persons and more than 50% of the donations are from people who are not at all concerned with the admission of the students whereas the AO has disallowed the entire donations. It is also seen that all the donations are recorded in the books of account of the assessee and most of the parents and relatives of the students also have stated that the donations are voluntary. Only a few parents of the students have stated that the donations are connected with the admissions and some of these statements have also been retracted subsequently. There is also no finding that the assessee has misused or not used the donations for any other purpose than the purpose for which they have been given i.e. for educational purpose. In such circumstances, we are of the opinion that the exemption u/s 11 of the Act cannot be denied in toto to the assessee with regard to the voluntary donations received by the assessee. Only such donations, which are admittedly not voluntary can be disallowed. AO is directed accordingly. Revenue’s appeals are partly allowed.

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• 2017 (9) TMI 1460
  Disallowance of deduction claimed u/s 54EC - time limit for investment - Held that:- From a reading of Section 54EC and the first proviso, it is clear that the time limit for investment is six months from the date of transfer and even if such investment falls under two financial years, the benefit claimed by assessee cannot be denied. It would have made a difference, if the restriction on the investment in bonds to Rs. 50,00,000/- is incorporated in Section 54EC(1) of the Act itself. However, the ambiguity has been removed by the legislature with effect from 1.4.2015 in relation to the assessment year 2015-16 and the subsequent years. For the foregoing reasons, we find no infirmity in the orders passed by the Tribunal warranting interference by this Court. The substantial questions of law are answered against the Revenue and these appeals are dismissed. We are of the view that there are differences in the judicial opinion on the issue. Thus following the decision of Hon'ble Madras High Court in the case of CIT vs S. Jaichander [2014 (11) TMI 54 - MADRAS HIGH COURT], dismiss the appeal of the Revenue on this ground.

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• 2017 (9) TMI 1459
  Deemed dividend addition u/s. 2(22)(e) - current adjustment accommodation and movement of funds - DR contended before us that this issue be restored to the file of the Assessing Officer as the assessee as raised this contention for the first time before this Tribunal - Held that:- We noted that the assessee has raised this contention even before the Assessing Officer, which is clear from para 4.3.3 of the assessment order. The Assessing Officer has observed “the plea of the assessee that the accounts between these companies should be treated as current account and the transactions are temporary in nature cannot be accepted.” On this basis, we reject the plea of the learned DR. No contrary decision was brought to our knowledge. Respectfully, following the decision of Hon’ble Gujarat High Court in the case of Schutz Dishman Bio-tech P Ltd (2016 (1) TMI 84 - GUJARAT HIGH COURT), we hold that the sum of Rs. 48,50,000/- cannot be treated as deemed dividend u/s. 2(22)(e) of the Act. Coming to the sum of Rs. 36,60,000/-, which was paid by Flamingo Additives & Colourants Pvt. Ltd to Genesis Nutech Pvt. Ltd. The assessee is having 48% share holding in Flamingo Additives & Colourants Pvt. Ltd and 25% share holding in Gnesis Nutech Pvt. Ltd. From the copy of the account, we do agree with the learned AR that there are debit and credit transactions between both the companies. The companies has given and received funds as and when required to and from its associate concern. The account here also appeared to be in the nature of current adjustment accommodation account where there is movement of funds in both ways on need basis. These transactions, as has been held by us in the preceding paragraphs, following the decision of the Hon’ble Gujarat High Court in the case of Schutz Dishman Bio-tech P Ltd (supra), we hold that the sum of can also not be regarded as deemed dividend u/s. 2(22)(e) of the Act. We hold accordingly, and, therefore delete the addition of Rs. 38,60,000/-. Now coming to the sum of Rs. 1,09,785/- paid by Flamingo Additives and Colourants Pvt. Ltd. to Flamingo Polycolours Pvt. Ltd, we, restrict the source to the sum of Rs. 89,774/- and Rs. 1,250/-. We noted from the copy of the account of the submissions made by the assessee the fact that these amounts were received by customers of Flamingo Polycolours Pvt. Ltd viz Shree Mother Plast in favour of Flamingo Additives and Colourants Pvt. Ltd. Since the cheque has been drawn in the name of Flamingo Additives and Colourants Pvt., therefore a cheque was issued in favour of Flamingo Polycolours Pvt. Ltd. This amount in our view cannot be regarded as loan and advances within the ambit of section 2(22)(e). We, accordingly, delete the addition in respect of Rs. 89,774/- and Rs. 1,250/-. Thus, in fact, the whole addition of Rs. 1,09,785/- stands deleted. Coming to the sum of Rs. 3000/-, which was the amount paid by Flamingo Polycolours Pvt. Ltd to M/s. Genesis Nutech Pvt. Ltd. In this regard we have gone though the copy of account available lat page 1 of the paperbook. From the account, it is apparent that as on 01.04.2009, there was a opening balance of Rs. 3,000/- against which on 10.09.2009 a cheque bearing no.180322 was paid to S.P. Enterprise. Since the cheque has to be paid by Flamingo Polycolours Pvt. Ltd but wrongly paid out of Genesis Nutech Pvt. Ltd., later on Flamingo Polycolours Pvt. Ltd repaid to Genesis Nutech Pvt. Ltd. Thus, this payment is nothing but repayment of the dues by Flamingo Polycolours Pvt. Ltd. to Genesis Nutech Pvt. Ltd. Thus this payment cannot be regarded as loans and advances as per section 2(22)(e) of the I.T.Act. We, therefore delete the addition of Rs. 3,000/-. Appeal of the assessee is allowed.

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• 2017 (9) TMI 1458
  Eligibility for exemption u/s. 11 - proof of charitable activities - assessee is rendering specific services to its members as well as non-members and charging fees - Held that:- CIT(A) has observed that the assessee is an association of professional and businessman to protect and promote the interest of its members. The income of the assessee is from membership fees from its members, specialized services, services and facilities, meetings, seminars and training programmes, sale of publication etc. It is also noted that the income of the assessee from other non-members of the institution are more and as such the principle of mutuality is apparently not applicable in the case of the assessee. We further note that the case of the assessee is covered in its favour by the orders of the Ld. CIT(A)’s predecessors for the Assessment years 2006-07 to 2011-12 and also by the order of the Hon’ble Delhi High Court in assessee’s own case for the AY 2006-07 & 2007-08. The Departmental Appeal for the AY 2008-09 & 2009-10 has also been dismissed by the Tribunal. Therefore, the Ld. CIT(A) has rightly observed that there is no sufficient reason to deviate from the appellate orders of the Ld. CIT(A) of the earlier years allowing the exemption u/s. 11(1) and accordingly, the AO was directed to allow the exemption u/s. 11(1) with all consequential benefits - Decided against revenue

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• Customs

• 2017 (9) TMI 1457
  Restoration of appeal - Jurisdiction - Assessee filed written submissions before the CESATAT raising the issue of jurisdiction of DRI to issue a SCN and adjudicate it. The challenge was to the DRI officer not being a ‘proper officer’ under the Customs Act 1962 - Held that: - the Court is of the view that the CESTAT had to decide the issue on merits - the Court finds that the CESTAT was not justified in rejecting the application filed by the Appellant-Assessee - appeal restored - decided in favor of applicant.

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• 2017 (9) TMI 1456
  Confiscation - Sweet Whey Powder - it was alleged that the goods are not conforming to the provisions of the Food Safety and Standards Act, 2006 Rules and Regulations made thereunder - This Court while exercising the jurisdiction under Article 226 of the Constitution of India cannot examine the validity of test report when there are no other malafides alleged against the officers who have done the testing. Thus, merely because the third respondent has reported the presence of heavy metal-Aluminium in the samples, that by itself cannot vitiate the report by stating that he ought not to have examined the metal content in the samples as the general parameters do not provide for the same - this Court is not inclined to entertain the writ petition and the same is dismissed as not maintainable.

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• 2017 (9) TMI 1455
  Redemption fine - smuggling - electrical goods and iridium of highest purity - prohibited goods - Held that: - admittedly, the goods were not declared by the petitioners, while they landed in Chennai Airport - In terms of Section 3(3) of the Foreign Trade (D and R), Act, 1992, all goods, to which, sub-section (2) applies shall be deemed to be the goods, imported or exported, of which has been prohibited under Section 11 of the Act. Therefore, when the baggage of the petitioners was treated as non bona fide baggage, the goods therein were rightly treated as prohibited goods under Section 11 of the Act - petition dismissed - decided against petitioner.

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• 2017 (9) TMI 1454
  Absolute confiscation - prohibited goods - gold bars coming out of the SEZ - section 125 of CA, 1962 - option to pay redemption fine - Held that: - even if the goods in question are considered as prohibited goods as defined under the Customs Act, the adjudicating authority may consider imposition of fine and need not invariably direct absolute confiscation of the goods. - In these premises, thus to consider the issue raised at the bar that whether the gold bars removed from the Unit in SEZ with out permission and contrary to the Circulars issued by RBI and Customs, became prohibited goods, or otherwise, in our view, becomes more an academic exercise and hence need not be resorted to. On the issue of considering the quantum of redemption fine imposed by the adjudicating authority, we find substance in the contention of the Revenue inasmuch as, wiping out of profit cannot always be the yardstick invariably in all the circumstances in fixing the quantum of fine; also in the present case there has been no data to support the finding that the margin of profit from such illicit transaction of removal of goods from the authorised SEZ operation to the local market would be 3 to 4% in the Respondent's case - quantum of redemption fine and penalty upheld. Appeal allowed.

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• 2017 (9) TMI 1453
  Benefits of N/N. 21/2002 dated 1.3.2002 - concessional rate of duty - denial on the ground that the respondents have not complied condition of producing the requisite certificate at the time of import - Held that: - the respondents have complied with the condition of producing the certificate at the time of filing the appeal itself. This being the case, the delay in producing the certificate has been rightly condoned by the Commissioner (Appeals) and has given the benefit of the Notification to the respondents. Denial also on the ground that catalyst imported cannot be considered as raw materials or consumables etc. specified in Notification - Held that: - The Hon'ble Supreme Court in the case of COLLECTOR OF C. EX. Versus BALLARPUR INDUSTRIES LTD. [1989 (9) TMI 102 - SUPREME COURT OF INDIA], observed that sodium sulphate can be considered as a raw material - the ground of the department that the respondents are not eligible for notification for the reason that the catalyst imported by them cannot be considered as raw material is not tenable and therefore rejected. Appeal dismissed - decided against Revenue.

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• 2017 (9) TMI 1452
  Benefit of the DFRC licences - N/N. 48/2000, dated 25.04.2000 - benefit denied for the reason that the DFRC licences were issued initially to M/s. Tata Iron and Steel Co. Ltd., and were subsequently issued to the importer - Held that: - the DFRC licences were dated 11.05.2001 as well as 13.08.2001. The date of shipment is 21.11.2002, for which, the Bills of Entry were filed on 11.12.2002 - There is nothing on record to suggest that the date of the DFRC licences were otherwise. Further, the scheme of DFRC provides for procurement of valid licences subsequent to its issue the purposes of import by third parties - appeal dismissed - decided against Revenue.

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• 2017 (9) TMI 1451
  100% EOU - Misdeclaration of description of goods - enhancement of value - Held that: - the goods have been imported accompanied by the Malaysian supplier's invoice in which the value of the goods found declared differently from what has been claimed at the point of export. Once the goods are considered as an independent import not connected with the claim of export from India, the findings of the adjudicating authority merits approval - confiscation upheld - appeal dismissed - decided against appellant.

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• 2017 (9) TMI 1450
  Penalty u/s 114 (i) of the Customs Act, 1962 - Smuggling - red sanders - claim of appellant is that they have no knowledge of the attempt of illegal export - Held that: - Shri Chaphamayum Sana Singh had confirmed that all the three persons i.e. he himself, Shri Tomcha Singh and Shri Taorem Naba Singh, were physically present at the time of loading of Red Sanders and Potatoes and fruits. Thus, it is clearly evident that such persons had full and complete knowledge of the contraband goods being transported - it is clearly evident that the appellants except Shri Bajinder Singh had consciously loaded the Red Sanders attempting to export illegally. The penalty on Shri Chaphamayum Sana Singh, Shri Tomcha Singh and Shri Taorem Naba Singh is upheld - the amount of penalty is reduced to Rs. 50,000/- each in case of the appellant - penalty imposed on Shri Bajinder Singh is set aside and absolute confiscation of vehicle is upheld. Appeal allowed - decided partly in favor of appellant.

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• 2017 (9) TMI 1449
  Refund claim - whether refund is admissible, when, the respondent did not challenge the assessment? - Held that: - the issue is squarely covered in favor of the respondent by the decision of the Hon'ble Delhi High Court in the case of Aman Medical Products Ltd. v. CC, Delhi [2009 (9) TMI 41 - DELHI HIGH COURT], where it was held that non-filing of the appeal against the assessed bill of entry does not deprive the appellant to file its claim for refund under Section 27 of the Customs Act, 1962 - refund allowed. Unjust enrichment - Held that: - the facts are not clear as to how the imported goods were dealt with, whether the inputs were actually used to manufacture final products. The Commissioner(Appeals) has passed a perfunctionary order without discussing the complete facts in the background of the judicial precedents in the matter - the matter of unjust enrichment needs to be remanded. Appeal allowed in part and part matter on remand.

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• Insolvency & Bankruptcy

• 2017 (9) TMI 1448
  Initiation of Corporate Insolvency process in respect of respondent corporate debtor - Held that:- A certificate dated 20/07/2017 issued by the Karur Vysya Bank, has been placed on record in which it has been confirmed that payment received through the corporate debtor in the account of operational creditor during financial year 2014-2015 and 2015-2016 is Rs. 20,34,32,000/- and last payment received on 29.12.2015. Another certificate dated 20.07.2017 issued by the Bank of India has also been placed on record in which it has been certified that payment amounting to Rs. 3,36,16,634/- from corporate debtor has not been deposited between 27.05.2017 to 20/07/2017 in the account of the Operational Creditor. The operational creditor has filed relevant bank account statements duly certified by both the Banks. In view of the above, we are satisfied that the present application is complete and the Operational Creditor is entitled to claim its dues towards the goods supplied to the corporate debtor and there has been a default in payment of the operational debt. Therefore, on fulfilment of the requirements of section 9 (5)(i)(a) to (e) of the Code, the present application is admitted. A moratorium in terms of section 14 of the Code issued. Mr. Prabhjit Singh Soni, is appointed as Interim Resolution Professional, who shall take statutory steps as envisaged under section 15, 17 and 18 of the Code. Since, the tenure of the IRP under section 16(5) shall not exceed 30 days from the date of his appointment, the IRP is directed to submit his report at the earliest but not later than 22.09.2017.

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• 2017 (9) TMI 1447
  Corporate Insolvency Resolution Process - Insolvency and Bankruptcy Code, 2016 - eligible outstanding debt - Held that:- Insolvency Resolution Process is not a recovery proceeding to recover the dues of the creditors. I & B Code, 2016 is an Act relating to reorganisation and insolvency resolution of corporate persons, partnership firms and individuals in a time bound manner for maximisation of value of assets of such persons and to promote entrepreneurship, availability of credit and balance the interests of all the stakeholders including the Government dues. Such being the object of the I & B Code 2016, if the interest of all the stakeholders are balanced and satisfied then to promote entrepreneurship and to ensure that the company continue to function as on going concern, it is desirable to close such proceeding without delay and going into technical rigour of one or other provisions, which are all otherwise futile for all purpose. In the circumstances, instead of interfering with the impugned order, we remit the case to the Adjudicating Authority for its satisfaction whether the interest of all stakeholders have been satisfied and whether one or other creditor has not raised any claim like Punjab National Bank, alter giving notice to individual claimant and taking into consideration of the Insolvency Resolution plan and report of the Insolvency Resolution Professional as may be prepared, the Adjudicating Authority may close the proceedings. Hope and trust that all the formalities will be completed by group of 'Financial Creditors' and Insolvency Resolution Professional expeditiously and the Adjudicating Authority will pass appropriate order, in accordance with law after notice of hearing the parties

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• PMLA

• 2017 (9) TMI 1446
  Offence under PMLA Act - provisional attachment orders - legal owner of property - vehicle was hypothecated to the Appellant Bank and that the Appellant/SBI had prior charge over the subject matter/said vehicle and the Ld. Adjudicating Authority confirmed the provisional attachment order - superiority of SARFAESI Act - overriding effect of the two Acts i.e. SARFAESI Act, 2002 and the PMLA Act, 2002 - Held that:- Admittedly, neither the bank is the accused in any criminal proceedings nor there is any allegations against them that they are involved in the commission of alleged crime or generating “proceeds of crime”. The amount of loan sanctioned are public money and they are entitled to get back their money by selling the mortgaged property as a first charge. The provisions of the amended SARFAESI Act prevail over the provision of the PML Act because the Amended SARFAESI Act is the subsequent legislation to the PML Act as held by the Hon’ble Supreme Court in the case of Solidaire India Ltd. Vs. Fairgrowth Financial Services Ltd. & Ors. (2001 (2) TMI 968 - SUPREME COURT OF INDIA) Thus, the ED has no authority over the said vehicle as the Appellant is now the legal transferee of said vehicle. Even in the criminal jurisprudence, if the stolen property is in the hands of unauthorized person then that person cannot claim title to the property. The said recipient cannot retain the property over which he has no legal title and the property should be returned to the lawful owners. In view of above observations, the impugned order dated 29.08.2014 is set aside. The provisional attachment order dated 31.03.2014 also set aside. The bank is permitted to sell the said vehicle to recover part of its outstanding against dues of Rs. 12.45 Lacs. As far as the remaining balance amount is concerned the bank is entitled to recover the remaining amount by taking the appropriate action as per law.

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• Service Tax

• 2017 (9) TMI 1443
  Classification of service - Works Contract service - composite contract - Department issued a SCN dated 27th May, 2011 to the Assessee stating that the aforementioned construction projects were entirely commercial in nature and were amenable to service tax under the category of Commercial and Industrial Construction Service - Whether the CESTAT was justified in remanding the matter to the Adjudicating Authority on the question whether the contract in question was a composite works contract and whether it was liable for service tax as such? - Held that: - On a plain reading of the SCN, it is apparent that it was never disputed by the Department that what was undertaken by the Appellant was a composite contract of construction which involved labour and service elements. The grant of rebate to the Assessee as noted in the SCN was itself an acknowledgment of this. If that was never in issue, the question of remanding the matter to the Adjudicating Authority for verifying that fact did not arise - The CESTAT had to examine if the nature of the contracts executed by it was such that would be covered by the decision of the Supreme Court in Commissioner of Central Excise, Kerala v. Larsen & Toubro Ltd. [2015 (8) TMI 749 - SUPREME COURT]. The appeal of the Department is restored to the file of the CESTAT.

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• 2017 (9) TMI 1442
  CENVAT credit - GTA service - cargo & courier service - club & hotel membership service - Time limitation - Held that: - the earlier show-cause notice dated 24.09.2009 was withdrawn by the Revenue and therefore, the said notice is non-est. Hence, there is no force in the submission of the ld.Advocate on limitation. The appellants contested the demand on merits also. It is seen that all these issues on merit were not examined by the lower authorities in proper manner. It is appropriate that the matter should be remanded to the Adjudicating Authority to decide afresh. Appeal allowed by way of remand.

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• 2017 (9) TMI 1441
  Refund of Revenue Deposit - time limitation - whether the appellant who had deposited the tax, as their claim for being exempt under N/N.74/93-CE dated 28/02/1993, was not accepted by the Department and subsequently when the matter came to be settled by the Hon'ble Supreme Court and the appellant applied for refund, whether the same has been rightly rejected on the ground of limitation? Held that: - the appellant have deposited the duty under protest - in view of the exemption notification being held applicable in favor of the appellant, subsequently by Hon’ble Supreme Court order, the amount of duty deposited acquired the character of revenue deposit - there is no limitation for refund of Revenue deposit - refund allowed - appeal allowed - decided in favor of appellant.

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• 2017 (9) TMI 1440
  Taxability - reimbursable expenditure - Held that: - the appellant did not produce sufficient evidences before the Adjudicating Authority in order to indicate that the subject amount on which the Dept. issued the demand of Service Tax is actually under the category of 'reimbursable expenses'. When it is so, the subject matter is remanded back to the Original Adjudicating Authority who shall decide if the subject amount is under the category of reimbursable expenses or not - matter on remand. Demand of Service Tax on the amount of TDS - Held that: - The appellant, in this regard, pleads that this demand is time barred and therefore, there is no liability of payment of Service Tax against them - this issue also needs to be decided afresh by the Original Adjudicating Authority, to whom the matter is being remanded. Appeal allowed by way of remand.

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• 2017 (9) TMI 1439
  Reverse charge mechanism - availing the services of Foreign Commission Agent to locate the buyers - penalty - Held that: - The payment of service tax on reverse charge basis during the relevant period was under cloud and the matter was not clear from doubts. Inasmuch as, the appellants have reflected the receipts of said services in their records, required to be maintained under law, it has to be held that there was no malafide on their part - extending the benefit of section 80 of the Finance Act, 1994, the penalty imposed is set aside - decided in favor of appellant.

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• 2017 (9) TMI 1438
  Penalty - payment of tax with interest on being pointed out - Reverse charge mechanism - import of service under the category of consulting Engineer - Held that: - the appellant on the basis of his own ascertainment or on the basis of the tax ascertained by the Central Excise Officers, had paid the tax with interest and informed the department by letter dated 25.11.2009. There is no material available on record of allegation of fraud, collusion etc. - the SCN issued after one Year is contrary to the provisions of law and the imposition of penalties is not justified - appeal allowed - decided in favor of appellant.

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• 2017 (9) TMI 1437
  Non-payment of tax - It is the case of the Revenue that the appellant collected the Service Tax from the customers, but failed to deposit the same with the department - overlapping of amount - Held that: - Apparently, it is seen that the period of dispute in the second appeal is covered in the first appeal. Further, the appellant requested for re-quantification of the demand as per reconciliation statement - the appellant should be given an opportunity to place the reconciliation statement in the interest of justice - appeal allowed by way of remand.

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• 2017 (9) TMI 1436
  Refund claim - GTA service - denial on the ground that there is no linkage like shipping bill No., bill of lading No., export invoice No., etc. to show that the services are actually used for the goods claimed to have been exported under the specific shipping Bill - The Department's contention is that, the charges have not been incurred close to the date of shipment, and that there is no one to one co-relation with the goods exported - Held that: - It is well-settled that in the Cenvat Scheme there is no requirement to establish a one to one relation between the goods/service and goods exported from amongst the mass of goods. It is noted that the definition of port service is very wide - CBEC Circular DOF No.334/1/2010-TRU dated 26.02.2010, gave clarity in respect of alteration and expansion in the scope of existing services and other significant changes in the Finance Act, 1994 in respect of services provided at the port. In order to remove difficulties, it is clarified that the definition of port service as amended, "that all services provided entirely within the port premises would fall under these services". Thus, any service rendered within the port premises could be treated as port service - Further CBEC Circular No.120/01/2010-ST dated 19.01.2010, in respect of refund of Cenvat Credit of Service Tax to exporter, it is clarified that for the eligibility of refund, the nexus between inputs or input service and the final goods/services has to be loser. There is no requirement of one to one co-relation between inputs and outputs. As the benefit of C.B.E. & C. Circular dated 19-10-2010 and relied upon case laws were not available before the adjudicating authority, the matter is remanded back to the Adjudicating authority to decide the matter on the basis of chartered Accountant’s certificate to establish the co-relation required under N/N. 41/2007-S.T. - appeal allowed by way of remand.

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• Central Excise

• 2017 (9) TMI 1435
  Inter-unit transfer of capital goods - CENVAT credit on capital goods shifted to another unit - penalty u/s 11 AC - Held that: - there is no dispute that the appellants transferred the capital goods to their sister unit. The appellant has not contested the issue that they should have reversed the credit, which they have done on detection - the other Unit was entitled to avail credit. Thus, it is difficult to observe that there was fraud or collusion or mis-statement etc. for inter-unit transfer of goods - penalty set aside - the demand of CENVAT Credit along with interest is upheld - decided partly in favor of appellant.

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• 2017 (9) TMI 1434
  CENVAT credit - shifting of units and transfer of credit - Rule 10 of the CCR, 2004 - Held that: - On plain reading of Rule 10(1) of CCR, 2004, it is clear that if a manufacturer of the final product shifts his factory to another site, shall be allowed to transfer the Cenvat Credit lying unutilized in his accounts - the Adjudicating Authority examined the transfer of credit in details as permitted under Rule 10 of the Cenvat Credit Rules, 2004. The appellant categorically contended that they have not availed any credit on capital goods as revealed from the records. Therefore, the allegation against the appellant is without any substance - appeal allowed - decided in favor of appellant.

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• 2017 (9) TMI 1433
  Maintainability of appeal - proviso (a) of Section 35B of the Central Excise Act, 1944 - Held that: - the case is related to loss of petroleum products on storage and the order is passed by the Commissioner (Appeals). In view of the above provisions, the appeal should not lie before this forum as the Tribunal does not have jurisdiction to decide this appeal - appeal dismissed being not maintainable.

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• 2017 (9) TMI 1432
  Clandestine removal - penalty - Held that: - the seized documents were found from the factory premises of the appellant. In reply to show cause notice, it is stated that after roasting the Bidis, they are labelled with different brands and are recorded as labelled Bidis in the RG-12A Register and are cleared from the factory on payment of duty. It is stated that total unlabelled Bidis are recorded in their RG-12A Register as unlabelled Bidis and tax is paid on said unlabelled Bidis after roasting and branding. I find that the statement made by the appellant in reply to the show cause notice is without any substance. It is noticed that the appellant had not filed any reconciliation statement on the basis of the quantity as shown in the seized documents and the clearance of the goods as mentioned in the RG-12A Register. Penalty on manager and accountant - Held that: - they are the employees of the appellant firm and acted on the instructions of the Managing Partner of the appellant firm. There is no material available on record for imposition of penalty on Md. Serajul Haque and Shri Mihir Singha, employees of the appellant firm and the penal provisions cannot be invoked against them - the Managing Partner, Md. Jalaluddin Biswas had been directly involved in the clandestine removal of the goods. It is found that Md. Jalaluddin Biswas had admitted in his statement that the entire activities of the appellant firm is controlled by him. Therefore, the imposition of penalty is justified. Amount of penalty reduced - decided partly in favor of appellant.

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• 2017 (9) TMI 1431
  CENVAT credit - common input services for finished goods as well as trading activities - whether the appellant is required to reverse the Cenvat credit availed on three common input services which are utilized for discharging duty liability on the finished goods as well as for trading activities? - time limitation - Held that: - even prior to 01.04.2011 trading activity has to be considered as exempted services is the law settled as on date; and even extended period can be invoked in such a situation wherein demands are raised. In view of this on the question of merits as also on limitation, the appeal fails. As regards computation of the demand on duty which has been confirmed by the adjudicating authority as 13, 62,622 which has been partly paid, the adjudicating authority should reconsider the computation based upon the explanation Rule 6(3D)(C) of the Cenvat Credit Rules, 2004, in its correct perspective and arrive at the exact amount that needs to be reversed by the appellant. Appeal allowed by way of remand.

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• 2017 (9) TMI 1430
  Clandestine removal - Held that: - the Chartered Engineer's Certificate produced by the appellant before the adjudicating authority, the claim was that there cannot be any weight gain instead there would be weight loss on use of oil during texturizing process; whereas, their present report of SASMIRA acknowledges weight gain in the range of 0.2 to 0.5%. Weight gain in the range of 0.2% to 0.5% the aforesaid statements definitely has evidentiary value and could be used as corroboration to the expert's evidence. Even if the weight gain at the lowest of the range i.e. 0.2%, mentioned in the opinion dt. 12.05.2017, is considered, then also some removals would be there without payment of duty - to arrive at the exact quantum of clearance without payment of duty, applying the weight gain as 0.2%, the matter needs to be remanded to the adjudicating authority to quantify the demand - appeal allowed by way of remand.

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• 2017 (9) TMI 1429
  Classification of goods - extended period of limitation - Held that: - the appellant has argued that since all the facts relating to clearance of left over materials disclosed in filing the relevant GP-1s alongwith monthly RT-12, therefore, no suppression of fact could be attributable for failure on their part to correlate between the GP-1 against which duty was paid initially on the machine and the GP against which subsequently left over parts/ components had been cleared by them - there is no suppression of facts, accordingly, the demand relating to left over material invoking extended period of limitation is set aside and consequently the penalty imposed on the appellant is also set aside - appeal allowed in part.

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• 2017 (9) TMI 1428
  Demand - the appellant units had processed stock of sarees with the aid of power attracting duty of Central Excise - Held that: - there was no machine to be used with the aid of power for the process of dyeing found installed in the premises of appellant No. 1 (M/s Rajkamal Textiles Printery). When it is so the Revenue's basic premise that the appellant M/s Rajkamal Textiles Printery carried out the process of dyeing of fabrics on five Jigar machines running with electric motors does not stand to the required scrutiny. Therefore, it appears that the proceedings initiated against the appellant No. 1, M/s Rajkamal Textiles Printery by issuance of SCN No. 58/2003 dated 28.02.2003 cannot pass the scrutiny under the law of Central Excise. However considering the fact that the impugned order did not consider certain evidences like photographs, videography record as pleaded by appellants, we are not giving any further observations on this - matter on remand. There is no dispute on the fact that the premises of M/s Madhuri Print had physical installation of said five Jigar Machines. However the appellant No. 2 - M/s Madhuri Print submits that though five dyeing machines (Jigar machines) were available in their factory they were actually getting dyeing process undertaken through outside workers. The appellant No. 2 argues that their bills in this regard were not taken into consideration - matter on remand. Appeal allowed by way of remand.

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• 2017 (9) TMI 1427
  Clandestine removal - the Revenue's case is primarily and mainly based upon the entries made in the "Private Gate Passes" and the "Outgoing Material Register" - Held that: - Admittedly, such entries contained all the relevant particulars concerning the removal of the goods. The "Private Gate Passes" prepared by the appellant indicate all the particulars required to be indicated in the Central Excise Invoices/Gate Passes. The Managing Director of the appellant-Company, in his initial statement has admitted that such gate passes stand used by them for removal of their final product without reflecting the same in their statutory records - even though the first statement was subsequently retracted by Shri Ashok Saraf but such retraction is of no consequence as Shri Ashok Saraf himself in his subsequent statement admitted the initial facts disclosed by him in his first statement and also submitted that retraction may be considered to be of no consequence - the duty demand stands raised on the basis of the unaccounted and unexplained excess raw material is not factually correct. The reference to the unaccounted raw material is only with an intention to corroborate the allegation and charge of clandestine manufacture and removal of the final product. Even though, the charges of clandestine removal are required to be established by the Revenue by production of, sufficient tangible evidences but the acceptance of such evidences, depends upon the facts of each and every case. In my view, the appellant having not challenged and contested the entries made in the private records which stand corroborated by the recipient of the goods along with fact of findings of unaccounted excess raw materials inspire confidence in the Revenue's case - duty demand upheld. Penalties - Held that: - the same are on the lower side and require no interference by the Tribunal. Similarly, penalty imposed upon Shri Ashok Saraf is proper and appropriate inasmuch as, the entire evidences on record lead to the factum of involvement of the Managing Director in such clandestine activities of the manufacturing Unit. Appeal dismissed - decided against appellant.

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• 2017 (9) TMI 1426
  Benefit of reduced penalty u/s 11 AC of the CEA, 1944 - duty demand paid within 30 days of the date of order-in-original and the interest and 25% of penalty was paid thereafter within 10 days - Held that: - the adjudicating authority has to mention in the order that such an option is available to the appellant to pay reduced penalty of 25% if the duty demand, interest and reduced penalty is paid within 30 days of communication of the adjudication order - the impugned order can be modified to the extent of reducing the penalty to 25% without disturbing the demand of duty or interest - appeal allowed in part.

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• 2017 (9) TMI 1425
  SSI exemption - use of Brand name - Revenue has contended that mere addition of letters ‘T', R', 'C' or ‘A' to the trade name "ASOKA" is merely an internal arrangement amongst the registered partners etc. and that does not qualify them to avail SSI exemptions - Held that: - the respondent will be entitled to use the brand name "ASOKA" with the suffix 'R' to the territory allotted to them, since such a brand name is used by the respondent only after proper assignment on dissolution of the parent firm - the respondent has not used the brand name of another person so as to incur the mischief of para 4 of the SSI notifications - the decision in the case of Commissioner of Central Excise, Delhi I Versus M/s. BONNE Care Pvt. Ltd. (Vice-Versa) [2016 (8) TMI 33 - CESTAT NEW DELHI] followed - appeal dismissed - decided against Revenue.

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• 2017 (9) TMI 1424
  CENVAT credit - capital goods which were used in the mining area - SCN were issued alleging that tyres for dumpers and dumpers do not qualify to be capital goods - Held that: - issue involved in this case was initially decided by the Division Bench of the Hon’ble Supreme Court in the case of Vikram Cements vs. Commissioner of Central Excise, Indore [2006 (2) TMI 1 - Supreme court], where it was held that Modvat/Cenvat credit on capital goods used in such mines will not be available to the concerned assessee under the appropriate Modvat/Cenvat Rules - the matter is remanded to the Adjudicating Authority to decide in the light of the above decision - appeal allowed by way of remand.

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• 2017 (9) TMI 1423
  CENVAT credit - duty paying invoices - denial on the ground that the ISD issued the invoices in respect of GTA services and other input service during the period July, 2009 to March, 2010 which has not been received by the Kolkata unit of the appellant - Held that: - There is no allegation of violation of Rule 7 of Cenvat Credit Rules, 2004. Rule 7 of CCR, 2004 provides manner of distribution of credit by ISD - Hon’ble Karnataka High Court in the case of ECOF Industries Pvt. Ltd. [2011 (2) TMI 1130 - KARNATAKA HIGH COURT] held that credit cannot be denied on the ground that the input services were not used or received in relation to manufacture of Kolkata Unit - appeal allowed - decided in favor of appellant.

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• 2017 (9) TMI 1422
  Pre-deposit - whether mandatory deposit of seven and half percent as per Section 35F (i) of the Central Excise Act 1944, is required to be paid in cash or the same can be paid from CENVAT Credit Account maintained by the appellants? - Held that: - in Section 35, it is not specifically mentioned that amount has to be deposited only by way of cash payment - the view taken by the First Appellate Authority, that deposit u/s 35F (i) cannot be made from CENVAT Credit Account, is not the correct appreciation of law so long as the CENVAT Credit is permissible for utilisation as per Rule 3(4) of the CCR, 2004. Appeal filed by the appellant is allowed by way of remand to the First Appellate Authority with directions to decide the appeal on merits without insisting on any further pre-deposit - appeal allowed by way of remand.

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• CST, VAT & Sales Tax

• 2017 (9) TMI 1421
  Inter-state Sales - declaration forms - Form-C - Rule 12(7) of the Central Sales Tax (Registration and Turnover) Rules, 1957 - exemption towards tax holiday - the Company had approached their purchaser, on various occasions for C-Form declarations, but their supplier failed to produce the same to them - demand - Whether the Sales Tax Appellate Tribunal was justified in invoking proviso to Rule 12(7) of the CST (Registration and Turnover) instead of invoking the power proviso to section 8(4)? Held that: - As per the provisions of the Central Sales Tax (Pondicherry) Rules, 1967, C-Form Declarations ought to have been submitted before 25th April, 2007, being the last date to submit the last month return of the year 2006-07 or in pursuance of sub-rule (7) of Rule 12 of the Central Sales Tax (Registration and Turnover) Rules, 1957, C-Form Declarations ought to have been submitted within June' 2007. However, in the case on hand, the assessment order has been passed on 13.05.2014, by the assessing authority. An appeal has been filed before the Appellate Assistant Commissioner. The Appellate Authority has proceeded, by stating that as per sub-rule (7) of Rule 12 of the Central Sales Tax (Registration and Turnover) Rules, 1957, C-Form Declarations ought to have been submitted within June' 2007. As per the proviso to Rule 12(7) of the Central Sales Tax (Registration and Turnover) Rules, 1957, if the prescribed authority is satisfied that the person concerned was prevented by sufficient cause from furnishing such declaration or certificate with in the aforesaid time, that authority may allow such declaration or certificate to be furnished within such further time as that authority may permit. Whether the appellant had acted diligently to obtain the Form-C Declarations, from their purchasers, for production before the authorities? - Held that: - Though in the case in hand, the department has contended that sufficient cause was not shown for the production of C-Form declaration, before the assessing officer and that no request was made for production of the same, accepting the contention of the assessee therein that the Appellate Authority/Tribunal, has powers to receive documents, in particular, Form-C declarations and considering the fact that the assessee had taken diligent steps to obtain Form-C Declarations, from their purchasers, by causing a legal notice and on obtaining the same, produced the C-Form Declarations, we accept the sufficient cause shown, which the authorities have failed to consider - impugned order set aside. Petition allowed - decided in favor of petitioner.

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• 2017 (9) TMI 1420
  Maintainability of petition - alternative remedy of appeal - Section 39 (2) of the KVAT Act, 2003 - Held that: - since the issues raised in the present writ petitions are pending before Appellate Tribunal on the appeals filed by the assessee, therefore, the matters may be allowed to be agitated before the said appellate forum - the appellant is permitted to withdraw the appeals with a view to approach before the appellate authority - petition dismissed being not maintainable.

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• 2017 (9) TMI 1419
  Natural justice - Job Work Charges - Liability under Section 13 of the Act - Held that: - if the opportunity of personal hearing had been granted to the petitioner, then, the entire material could have been thrashed out before the respondent without giving room for any presumptions or assumptions. In the counter affidavit filed by the respondent, it is admitted that the petitioner has purchased materials in their name. If such is the position, then, the issue would be as to whether the findings recorded by the respondent are correct. Penalty u/s 27 (3) and (4) of the Act - Held that: - it is admitted by the respondent even in the revision notice, dated 14.09.2015, that the entire details have been culled out from the balance sheet and other documents produced by the petitioner - penalty set aside. The findings rendered by the respondent, in both the impugned assessment orders under the head Job Work Charges and Liability under Section 13 of the TNVAT Act are set aside and the matter is remanded to the respondent for fresh consideration - appeal allowed by way of remand.

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• 2017 (9) TMI 1418
  Reversal of ITC - interpretation of statute - proviso to Section 19 (2) (ii) of TNVAT Act - Held that: - it appears that the State is in the process of preferring Appeals, by re-presenting the Appeal papers and the Appeals are yet to be numbered. The settled legal position being that, mere pendency of the Appeal(s), without interim order(s), will not amount to the grant of stay of the order(s) passed by the Lower Court or Lower Forum - In the instant cases, it appears that the Appeals filed by the State are yet to be numbered - the decision in the case of M/s. Everest Industries Limited Versus The State of Tamil Nadu, The Deputy Commissioner (CT) (FAC) [2017 (3) TMI 279 - MADRAS HIGH COURT] apply, where it was held that the limitation provided in the proviso would apply only vis-a-vis the purpose specified in clause (v) and not qua other purposes set out in clause (i) to (iv) and (vi) of Section 19(2) of the 2006 Act. Writ Petitions are disposed of, by directing the respondent to consider the petitioner's petitions/letters/representations, dated 30.03.2017, taking note of the decision of the Court in M/s. Everest Industries Ltd.'s case - petition allowed by way of remand.

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• 2017 (9) TMI 1417
  Issuance of C declaration forms - amount of penalty due to be deposited - whether the respondent would be justified in withholding the C Form declarations? - Held that: - The petitioner, though entitled to prefer an appeal before the First Appellate Authority against the assessment order, is not required to effect any pre-deposit of penalty amount. If there are tax arrears, then 25% of the disputed tax has to be pre-deposited mandatorily for being entitled to present the appeal. The Statute itself does not provide for any pre-deposit in the case of penalty - it is too harsh to withhold the C Form declarations, when the petitioner is entitled to C Form declaration. The writ petition is disposed of by directing the respondent to release the C Form declarations, to which, the petitioner is eligible - petition allowed.

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• Indian Laws

• 2017 (9) TMI 1445
  Offences under Section 37 of the NDPS Act - bail application - HC [2014 (9) TMI 1126 - CALCUTTA HIGH COURT] held that further detention of the accused/petitioners is not necessary and to be released on bail bond - Held that:- The accusation in the present case is with regard to the fourth factor namely, commercial quantity. Be that as it may, once the Public Prosecutor opposes the application for bail to a person accused of the enumerated offences under Section 37 of the NDPS Act, in case, the court proposes to grant bail to such a person, two conditions are to be mandatorily satisfied in addition to the normal requirements under the provisions of the Cr.P.C. or any other enactment. (1) The court must be satisfied that there are reasonable grounds for believing that the person is not guilty of such offence; (2) that person is not likely to commit any offence while on bail. There is no such consideration with regard to the mandatory requirements, while releasing the respondents on bail. Hence, we are satisfied that the matter needs to be considered afresh by the High Court. The impugned order is set aside and the matter is remitted to the High Court for fresh consideration. It will be open to the parties to take all available contentions before the High Court.

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• 2017 (9) TMI 1444
  Complaint u/s 138 of the Negotiable Instrument Act - Petition filed under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 seeking speedy trial - Held that:- The jurisdiction under Section 482 of the Code is to be exercised by this Court (i) to give effect to any order under this Code, or (ii) to prevent abuse of the process of any Court, or (iii) otherwise to secure the ends of justice. However, in the light of facts and circumstances of the case, the petitioner has failed to justify any of the circumstances to invoke Section 482 of the Code in the present case. Therefore, this court does not feel that the petitioner has made out a fit case for the exercise of its powers under Section 482 of the Code.The petition is accordingly dismissed.

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