CASE LAWS
2017-TIOL-1899-HC-MUM-ST
CST Vs MORGAN STANLEY SOLUTIONS INDIA PVT LTD: BOMBAY HIGH COURT (Dated: September 4, 2017)
ST - Revenue is in appeal against the order passed by CESTAT remanding the matter to the adjudicating authority - Revenue contention is that the impugned order cannot be said to be a simplicitor order of remand as virtually there is a finding recorded by the Appellate Tribunal that the respondent is entitled to refund as prayed; that the Tribunal erred in allowing the respondent to rely upon certain documents which were not before the Adjudicating Authority when the claim for refund was considered earlier.
Held: It is crystal clear that the observation made by Tribunal is only prima facie observation; that the issue whether the respondent is entitled to refund in accordance with law is not at all concluded by the prima facie observation and issue of entitlement of the respondent to the refund has been expressly kept open to be decided by the Adjudicating Authority - no question of law arises in appeal, hence dismissed: High Court [para 3]
Appeal dismissed
2017-TIOL-1898-HC-MUM-CUS
NAND KISHORE SHARMA Vs UoI: BOMBAY HIGH COURT (Dated: September 04, 2017)
Cus - S.129A of Customs Act, 1962 amended by FA, 2014 - CESTAT had held that Pre-deposit fixed under the statute @7.5% of the penalty imposed is mandatorily required to be paid by appellant; that Tribunal cannot condone the amount fixed - However, appellant was allowed more time to make pre-deposit of 7.5% and report compliance on or before 06.05.2015 - as appellant failed to make the pre-deposit, the appeal was consequently dismissed - Appellant filing appeal before High Court.
Held: Appellant stating that they would deposit the pre-deposit amount within ten (10) weeks - accepting the said statement as an undertaking, High Court observed that one more opportunity needs to be granted to the appellant to prosecute the appeal - Ordered accordingly - appeal disposed of: High Court [para 2]
Appeal disposed of
2017-TIOL-1897-HC-KOL-CX
SAJ FOOD PRODUCTS PVT LTD Vs UoI: CALCUTTA HIGH COURT (Dated: September 04, 2017)
CX - Petitioner challenges the order passed by CCE, Kolkata-II, confirming duty liability of Rs.5.88 crores and imposing penalty of Rs.26.16 crores, on the ground that the impugned order does not consider five reported decisions of the Courts including two Supreme Court Judgements; that there is perversity apparent in the face of the record; that non-consideration of judgments amounts to breach of principles of natural justice.
Held: True, the judgments cited on behalf of the petitioners have not been dealt with in the order in original in the sense that, individual cases have not been discussed - Impugned order, however, proceeds to give reasons as to why it has arrived at its findings - Findings may be erroneous in law or in fact but the appellate authority has the jurisdiction to correct such errors, if there be any - As a Writ Court, High Court is not called upon to exercise the jurisdiction of an appellate authority, reappraise the evidence and substitute the findings of the order in original - In the facts of the present case, non-consideration of judgments on behalf of the petitioners, ipso facto , does not lead one to infer that there is a failure of justice or that the principles of natural justice stands vitiated - Allegations of perversity levelled against the impugned order remains unsubstantiated - no cause to intefere with the order - Petition dismissed: High Court [para 7 to 9]
Petition dismissed
2017-TIOL-1896-HC-MUM-CUS
MACLEODS PHARMACEUTICALS LTD Vs UoI: BOMBAY HIGH COURT (Dated: September 12, 2017)
Classification – State Excise Duty - Term "Narcotic Drug” or "Narcotic” has been defined under Section 2(h) of the M & T P Act to mean a substance which is coca leaf, or coca derivative, or opium, or derivative of opium, or Indian hemp and shall include any other substance, capable of causing or producing in human beings dependence, tolerance and withdrawal syndromes and which the Central Government may, by notification in the Official Gazette, declare to be a Narcotic Drug or Narcotic - Under the notification dated 12th June 1986, issued by the Central Government in terms of the said provisions of the M & T P Act, substances have been declared as Narcotic Drug or Narcotic – A plain reading of item No. 86 in the notification indicates that a Narcotic Drug or Narcotic would include only formulations containing more than 135 mgs of Dextropropoxyphene per dosage unit - In the present case, admittedly the subject formulations contain less than 135 mgs i.e. 65 mgs of Dextropropoxyphene and hence cannot be classified as a Narcotic drug or Narcotic in view of the said Notification - view taken by the Respondents that the Petitioners are liable to the State Excise Duty under the M & T P Act is thoroughly untenable - impugned demand notices quashed - Respondents to pay the Petitioners costs of Rs. 50,000/- for the loss caused on account of the wrongful seizure of the subject formulations: High Court [para 13 to 15]
Petition allowed
2017-TIOL-1895-HC-AHM-IT + Story
SARDAR VALLABHBHAI PATEL EDUCATION SOCIETY Vs ITO: GUJARAT HIGH COURT (Dated: September 11, 2017)
Income Tax - Writ - Sections 139A(1), (1B), (2), (3) & 148
Keywords: Allotment of PAN - Assessment of tax - Educational institution - Established legal principles - Genuine case - Jurisdictional facts & Separate entity.
The Assessee was an educational trust registered under the Bombay Public Trust Act. The Assessee had filed its return. The Assessee ran various educational institutions including one N.G.Patel polytechnic college. The return was accepted without scrutiny. The AO noticed that N.G.Patel polytechnic had a separate PAN and in its savings bank account of Bank of Baroda, cash amount of Rs.2.37 crores was deposited, on which, it had also received interest of Rs.2.40 lakhs. Despite this, it failed to file the return, for which a notice was issued for reopening of the assessment and to furnish a source of the cash deposited. However, there was no reponse from the account holder. Moreover, few objections were raised by the Assessee and stated that N.G.Patel polytechnic was assigned a separate PAN which would indicate that it was a separate entity for the purpose of payment and assessment of tax and it had not filed the return despite the fact that sizable cash amount was deposited in its bank account. The objection so raised were rejected by the AO.
In Writ, the High Court held that,
Whether mere allotment of PAN u/s 139A to an educational institution being run by a registered trust would make the allottee necessarily a separate entity for the purpose of assessment to tax - NO: HC
++ section 139A pertains to PAN. Section 139A(1) provides various categories of persons who are required to pay tax or for some other reason required to furnish return of income, would apply to the AO for allotment of a PAN. Under sub-section(1B), the Central Government may for the purpose of collecting any information which may be useful for or relevant to the purposes of the Act, may by notification require any class or classes of persons who shall apply to the AO for the allotment of the PAN. Under sub-section (2), the AO having regard to the nature of transactions as may be prescribed, may also allot a PAN to any other person following the prescribed procedure. Section 139A(3) provides that any person not falling under sub-section (1) or sub-section (2), may also apply to the AO for allotment of PAN, upon which, the AO shall allot the same;
++ it can thus be seen that mere allotment of PAN u/s 139A would not make the allottee necessarily a separate entity for the purpose of assessment of tax. The statute recognizes certain eventualities where quite outside the requirement of payment of tax and for filing return of income, the AO may allot a PAN to individual. The contention of the AO therefore that merely because N.G.Patel polytechnic had obtained the PAN, it was a separate entity for the purpose of filing of the return and assessment of tax was not valid. In the order rejecting the objections, the AO did not examine other objections and contentions raised on behalf of the petitioner on his summary conclusion.
Whether if in a genuine case where the AO may have reopened the assessment disposing the assessee's objections, could be struck down on jurisdictional facts being proved wrong on the basis of well known and established legal principles - YES: HC
++ the requirement of supplying reasons recorded by the AO when demanded by the Assessee and giving an opportunity to raise objections against the notice for reopening, requiring the AO to dispose of such objections flow from the decision of Supreme Court in case of G.K.N.Drive Shaft (India) Ltd. V. ITO 2002-TIOL-634-SC-IT. The clear intention of the Supreme Court in devising such a formula was that in genuine cases where the AO may have reopened the assessment which need to be dropped, such cases may be filtered out avoiding unnecessary hardships to the Assessee as well as protracted tax litigation. The exception of the Court of course would be that when an Assessee points out the correct facts and makes out a genuine case for dropping the notice for reopening of the assessment, the AO would apply his open mind and consider the factual and legal aspects as may be presented by the Assessee in such objections;
++ the expectation of the Court certainly would not be that such objections are discarded routinely without proper consideration or appreciation of the points raised by the Assessee. This is not to suggest that an improper order disposing of objections would render the notice issued by the AO for reopening of the assessment invalid. The reopening of an assessment could be struck down on any of the jurisdictional facts being proved wrong on the basis of well known and well established legal principles.
++ this preamble was necessary in the present case since we find that the AO without appreciating the Assessee's objections to the notice of reopening, rejected the same. In facts of the case, we would like to request the AO to re-examine the objections in peculiar facts pointed out in such objections as well as those urged before us. Till the AO passes a fresh order disposing of the objections of the Assessee, interim relief granted pending the petition directing the AO not to pass the final order on assessment shall continue.
Writ petition disposed of
2017-TIOL-1894-HC-MUM-IT
CIT Vs HARESH D MEHTA: BOMBAY HIGH COURT (Dated: September 4, 2017)
Income Tax - Sections 68 & 133(6).
Keywords: Doubt about transactions - Further inquiries - Genuineness of loan transactions - Non-attendance & Non service.
The Assessee is an individual. In his return, an addition was made u/s 68 by the AO towards transportation charges. The AO found that the Assessee had paid Rs. 2.82 crores towards such charges. He issued notices u/s 133(6) to 12 parties for further verification about the genuineness of the payments. However, the parties were not available on the addresses given by the Assessee. The notices issued by the AO were received back unserved. Therefore, the AO, proceeded on the basis that there was no proof of such charges having been disbursed and paid.
The First Appellate Authority held that the AO had merely doubted the veracity of the bank accounts of the creditors without corroborating his findings and without further substantiating his reasoning, hence, allowed the transportation expenditure. The Tribunal, in concurring with the First Appellate Authority, found that the AO had made addition u/s 68 without any reasonable basis.
On appeal, the High Court held that,
Whether mere non-service of notice or non-attendance of the party before the AO can be the sole ground to doubt the genuineness of the transactions or capacity of the party - NO: HC
Whether therefore, merely on AO's conclusion that the parties are not capable of giving loans, genuineness of the transaction cannot be questioned - YES: HC
++ the addition of Rs.54,00,000/- was made by the AO u/s 68 on account of unexplained unsecured loans shown by the Assessee in the balance sheet. This amount was shown as loan taken from nine parties. Out of the nine parties, according to the AO, except three, there is no justification or explanation for the six remaining persons or creditors. The AO held that the Assessee has not proved the capacity or genuineness of the parties to undertake such huge loan transactions and due to various discrepancies in the papers produced before him, he has reached the above conclusion. He has reached the conclusion that the parties are not capable of giving such loans. The AO has simply presumed that the genuineness of the transaction has not been proved;
++ in the first instance, the First Appellate Authority took up the case of M/s. Mukti Exports. It found that the AO's finding is not correct because the loan amount is generated from the business activities and duly reflected in the accounts. Therefore, it was for the AO to establish beyond doubt that M/s. Mukti Exports is not a genuine party. More so, when this party produces a copy of the return of income, profit and loss account, balance sheet and it's bank account. This party has sold out diamonds to the extent of Rs.1,07,95,15,143/- and there is a receipt of interest of Rs.46,31,212/-. It is in these circumstances that nonservice of the summons or the absence of the party before the AO cannot be the sole ground to doubt the genuineness of the transactions or capacity of the party. The party is identified and together with that, there is proof of its financial capacity;
++ the Assessee has produced details like copy of PAN card, copy of return of income, balance sheet and copy of bank accounts before the AO. If there was any doubt, the AO should have made further investigation. Once the initial burden was discharged, the AO had then to find out that despite production of record in relation to these parties, the version of the Assessee cannot be accepted. It is in these circumstances that the First Appellate Authority rightly stepped in.
Whether if there was doubt about the transactions made by the parties, the AO was free to make further inquiries - YES: HC
++ the Assessee failed to produce any of the persons before the AO. The First Appellate Authority, therefore, should not have reversed the conclusion of the AO, particularly when it did not take note of the fact that the Assessee did not produce even the basic information such as vehicle numbers, name of drivers and the route over which these vehicles were utilized;
++ the Tribunal did not rest its conclusions only on the finding that the AO has not carried out a complete exercise. The Tribunal perused the material produced on record. It agreed that there is a proof of actual performance of transportation work, lifting of waste, payment of Tax deducted at Source, full addresses and confirmation of accounts with PAN. Even the mode of payment is by account payee cheques. If there was further doubt about the transactions, the AO was free to make inquiries with the Regional Transport Office. It is in these circumstances that the Tribunal agreed with the First Appellate Authority.
++ it did not agree with the observation so also the finding of the AO that the notices could not be served or the parties did not remain present and that was a relevant factor. However, the Tribunal agreed with the First Appellate Authority in holding that mere non-attendance or mere nonservice without anything more could not be reason enough to sustain the addition. It is in these circumstances, that the First Appellate Authority has rightly stepped in according to the Tribunal. When the nature of the exercise undertaken by both the First Appellate Authority and the Tribunal is as above, then we do not see any perversity in their conclusions, nor can we agree with Mr. Malhotra that there is substantial question of law arising from this deletion of addition made by the AO. We do not see any error of law apparent on the face of record. In the circumstances, we find no merit in the Appeal. It is dismissed. No costs.
Revenue's appeal dismissed
2017-TIOL-1893-HC-AHM-IT + Story
ASHISH PRAFULBHAI PATEL Vs INCOME TAX SETTLEMENT COMMISSION: GUJARAT HIGH COURT (Dated: September 07, 2017)
Income Tax - Writ - Amendment in Chapter XIXA vide Finance Act 2007.
Keywords : Scheme for settlement - Separate applications & Settlement Commission.
The Assessee is an individual and assessments for the AY's 2001-2002 to 2007-2008 were pending at various original or appellate stages. In order to avail of the benefit of the scheme for settlement of cases the Assessee applied to the Commission for settlement of cases pertaining to his assessments for those AY's. In the meantime, by the Finance Act 2007, significant changes were made in the provisions contained in Chapter XIXA of the Act pertaining to settlement of cases. Prior to such amendments, the Assessee applying for settlement of his case though was required to make payment of tax with interest on admitted income but in case the Assessee failed to make the payment of such tax or interest the statute did not provide for any adverse effect on his application till its disposal by the Settlement Commission. By virtue of the amendments brought by the Finance Act 2007, the legislature now required that payment of admitted tax with interest should accompany the application for settlement and for the pending cases, the applicants were given time upto 31.1.2007 to make such payment, failing which, the application for settlement would abate.
In terms of such amendments, the Assessee made a total payment of Rs.23,97,400/- which covered the payment for the AY's 2001-2002, 2003-2004, 2005-2006 and 2007-2008. The Assessee was required to pay a sum of Rs.24,02,411/- by way of additional tax with interest for the AY's 2004-2005 and 2006-2007 which was not made till 31.7.2017. The Assessee contended that due to financial difficulties he could not make full payment of additional tax and interest which would cover all assessment cases and some additional time may be granted to enable the him to make the remaining payment. The Assessee also contended that he had paid the additional tax with interest for five out of seven AY's for which he had applied for settlement and the abatement of application for settlement should be confined to those assessment years for which the assessee was unable to make payment of additional tax with interest. The Commission rejected both the contentions contending that by virtue of amended provisions of Chapter XIXA of the Act making payment of additional tax with interest before 31.7.2007 was mandatory and Commission had no power to extend the time limit or grant installments. The Commission also rejected the prayer of the Assessee to limit the rejection of the application for those assessment years for which he could not make the payment contending that application for settlement cannot be split in parts and be allowed to proceed further with respect to some of the assessment years and rejected for some.
In Writ, the High Court held that,
Whether when the assessee has filed settlement applications for several AYs but only partly paid additional tax with interest, only those proceedings before the Commission would abate for which no payment of tax was made before June 1, 2007 and not all the proceedings - YES: HC
++ the eligibility of an assessee to file separate applications for settlement must be seen in light of the subsequent statutory changes with effect from 1.6.2007 by which the legislature cast a duty on the applicant who had already applied for settlement to pay the additional tax with interest on income disclosed before the Settlement Commission latest by 31.7.2007. These amendments brought in two major changes. First was that in all pending applications, the payment would now be made latest by 31.7.2007 with no possibility of extending the time. This was in stark contrast to the prevailing statutory provisions which enabled the Commission to extend the time for payment of tax if the assessee made out good and sufficient grounds for not being able to pay the same within the prescribed period. The Commission could also grant installments. Such powers of the Commission were taken away and a deadline of 31.7.2007 was introduced. The second major change was that if the assessee failed to make the payment of such additional tax and interest before 31.7.2007, his application for settlement would abate;
++ the combined effect of the statutory provisions prevailing before 1.6.2007 did not prohibit filing of separate applications for settlement assessment year wise and the newly introduced requirement of payment of additional tax with interest by 31.7.2007, failing which, the proceedings before the Settlement Commission would abate, would persuade us to hold that it was open for the Settlement Commission to examine the requirement of payment of additional tax with interest as may be correlated to a particular assessment year. It may be that the assessee himself had filed one common application for settlement of all cases. In view of the statutory provisions prevailing before 1.6.2007 and in view of the noted changes after 1.6.2007, such application need not have to be seen as one composite application for settlement which may either in its entirety are allowed to be proceeded with or be declared as abated. One must look at the application in the background of such statutory provisions before and after 1.6.2007. Had the requirement of payment of additional tax with interest been existing in the statute when the assessee applied for settlement surely, he would have applied only to the extent that he was able to muster up sufficient funds for additional tax and interest. Under the circumstances, the assessee's request that entire application for settlement may not be declared as abated, would have to be accepted. In other words, to the extent, the assessee had paid additional tax and interest by 31.7.2007, his proceedings before the Settlement Commission, would not abate. The abatement would apply with respect to those assessment years for which such payment was not made.
Assessee's Writ partly allowed
2017-TIOL-1892-HC-KERALA-IT
KARUN DUTT SINGH ALIAS RINKU SINGH Vs CIT: KERALA HIGH COURT (Dated: August 23, 2017)
Income Tax - Sections 69A & 131
Keywords - Seizure of gold - Survey
The assessee was apprehended and some gold was recovered from his person. On the same being reported, the Revenue requisitioned the gold u/s 132 & assessment proceedings were initiated. Subsequently, the value of the gold was added to the income of the assessee u/s 69A. The assessee claimed to be an employee of a firm, and that the gold belonged to such firm. Although such assessment order was set aside by the CIT(A), it was restored by the Tribunal.
Upon hearing the matter, the High Court held that,
Whether when the assessee and his firm failed to prove that the gold seized actually belonged to the firm, at the time of survey when sworn statements were recorded, it is a fit case for application of provisions of Sec 69A - YES: ITAT
++ Section 69A casts burden on the assessee to explain the nature and source of acquisition of the jewellery, and if the AO forms an opinion that the explanation offered is unsatisfactory, such value may be deemed to be the income of the assessee. This provision was construed by the Apex Court in its judgment in Commissioner of Income Tax, Salem v K.Chinnathamban, wherein it was held that to determine whether the assessee was the owner of any money in terms of Section 69A, the principle of common law jurisprudence in section 110 of the Evidence Act, 1872 can be applied. It provides that when the question is whether any person is the owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. In light of this statutory provisions and the principles laid down by the Apex Court, the assessee's case merits appreciation and the legality of the Tribunal's conclusions;
++ the assessment order of the AO was based on alleged anomalies found in the statements taken from the Director and Senior Manager of the assessee. Thereafter, the assessee's claims of being employed and of being the owner of the gold were repudiated. Considering the findings of the AO, the contention of the assessee of being an employee of the firm, and the gold belonging to such firm cannot be accepted. This is because at the time of the survey and while making sworn statements, neither the assessee nor the firm established the gold belonged to the firm. The AO made the addition due to the unexplained nature of the gold, which was erroneously set aside by the CIT(A) owing to an incorrect appreciation of evidence, but was then correctly restored by the Tribunal. Hence, the Tribunal order warrants no interference.
Assessee's appeal dismissed
2017-TIOL-1891-HC-AP-CUS
AVECO TECHNOLOGIES PVT LTD Vs UoI: ANDHRA PRADESH HIGH COURT (Dated: August 24, 2017)
Cus – Petitioner challenging O-i-O passed by the 2nd respondent, classifying the projectors imported by the petitioner under Tariff Item No.85286900 and not under Tariff Item No.85286100, resulting in the denial of the benefit of exemption under notification no.24/2005 dated 1.3.2005.
HELD - The entry under Tariff Item No.85286100 is applicable only to those genre of projectors that fall within the description "of a kind solely or principally used in an Automatic Data Processing System [ADPS]"- therefore, the question as to whether the projectors imported under the bill of entry dated 24.9.2007, about which the adjudication reached finality before the CESTAT, are exactly the same as the projectors imported during the period from 2011-2016, which form the subject matter of the present dispute, is a question of fact - this question of fact cannot be decided solely or principally on the basis of the decision of the CESTAT, dated 1.9.2010 - in other words, the impugned order cannot be attacked solely on the ground that it did not simply follow the decision of the CESTAT dated 1.9.2010 -the decision of the CESTAT dated 1.9.2010 was based upon the evidence available on record that the projectors imported under the bill of entry dated 24.9.2007 fulfilled the description given in Entry No.85286100 -therefore, the decision has no universal application to import of all types of projectors for all times to come - once this is clear, it is not possible for this Court to allow the petitioner to bypass the alternative remedy of appeal - when the very nature of the entry under Chapter Heading and sub-heading warrants an enquiry in respect of every import, due to the use of the words "of a kind solely or principally used in ADPS", the petitioner cannot cite the CESTAT order as a precedent, except in cases where the specification of the goods imported every time are of the same specification as the goods imported in 2007 that became the subject matter of the order of the CESTAT dated 1.9.2010 - therefore, the impugned order can be attacked on findings of fact by the petitioner only before the regular appellate authority and this is not a case warranting the bypassing of the alternative remedy of appeal, on the ground that the issue is already clinched in favour of the assessee -the writ petition is dismissed with liberty to the petitioner to file a regular statutory appeal : HIGH COURT [para 24, 25, 26, 28, 29, 32]
Writ Petition dismissed
2017-TIOL-1890-HC-MAD-CT
SALEM STEEL SUPPLIERS Vs DCCT: MADRAS HIGH COURT (Dated: August 8, 2017)
Tamil Nadu General Sales Tax Act - Writ petition - Sections 4A, 10 & (3), 12A, 12(3)(b), 14, 15, 16 & (1) & (2), 32
Keywords - Re-opening of assessment
The Dy. Commr. of Commercial Taxes (CT) issued notices to the assessees, alleging that the assessees purchased stainless steel sheets and coils from various dealers. One dealer, in a statement alleged that only sales bills were given and no goods were moved against the bills raised. Consequently, the Dy. Commr. sought to deny exemption claimed by the assessees on such purchases made. It was even alleged that the assessees produced fabricated bills to claim exemption and evade payment of tax on purchases and sales. The Dy. Commr. further held that the assessees failed to prove that there were anterior real value of goods, and so the sales made by the assessees would attract levy of sales tax. Thereby, the Dy. Commr. sought redetermination of total taxable turnover, and also imposed penalty.
After hearing the petition, the High Court held that,
Whether a Dy. Commr. of Commercial taxes could issue notices for reopening assessment, where such notices were found to be identical to notices issued in earlier AYs, and without any independent enquiry being made - NO : HC
++ upon an examination of sections 16 and 32 of the Act and of the impugned notices, it is seen that the notices issued to the assessees contain seven pages, which are common to all the assessees. In fact, these seven pages appear to be photo stat copies, which are commonly prepared and the name of the dealer has been filled up in hand at the appropriate place. Thus, the entire purpose behind issuing impugned notices is to re-open the concluded assessment. The averments set out in the impugned notices do not reveal that any independent enquiry has been done by the first respondent before issuing the impugned notices. In fact, identical notice was issued to one assessee in in an earlier case for the AY 1999-2000 and curiously, the allegations that are made in the present impugned notices were contained in the said earlier notice also.
++ the pattern adopted by the Dy Commr. is identical to that of the pattern adopted by the respective AOs in earlier or subsequent AYs. Hence, the Dy. Commr. had no new material to conclude that the assessments have to be reopened, as it is prejudicial to the interest of the revenue, and that such opinion was based on enquiry being made. In such factual position, the Dy. Commr. cannot exercise the powers, what could not have been done by the AO as the statement was recorded much after the assessments were completed, and the same are clearly barred by limitation, being beyond the period of five years.
++ following the precedents established in the cases of A. Velayutha Raja Vs. Board of Revenue, Reliance Motor Company Pvt. Ltd., Vs. State of Tamil Nadu and M/s.P.Narayansamy Vs. State of Tamil Nadu, wherein the powers of various authorities to issue notices to bring to tax escaped income, was discussed as was their power to re-open assessments, the impugned notices issued to the assessees merit being set aside.
Assessees' appeals allowed
2017-TIOL-3365-CESTAT-DEL
BIRLA CORPORATION LTD Vs CCE: DELHI CESTAT (Dated: August 25, 2017)
CX - Appellant, a manufacturer of cement, had been clearing the same on payment of duty @12% - vide notification no.4/2006 dated 1.3.2006, rate of duty was reduced to 8%, but appellant continued to pay duty @12% - on realisation that it had paid excess duty, appellant filed refund clam - vide impugned order, refund claim rejected on the ground that the appellant has failed to pass the bar of unjust enrichment - appeal to CESTAT.
HELD: Invoice clearly shows that appellant has paid duty at the rate of 12% - although the appellant is selling goods on MRP basis, duty payable has been shown by the appellant at the rate of 12% - the contention of the appellant is that they are selling goods at MRP and all duties and taxes are inclusive, but from the invoice it is clear that duty collected from the buyer has been shown separately - in that circumstances, duty incidence has been passed on to the buyer - further, appellant has failed to produce any evidence on record that buyers have not availed cenvat credit on duty shown in the invoice -in that circumstances, appellant has failed to pass the bar of unjust enrichment - therefore, no infirmity found in the impugned order, same is upheld - appeal dismissed : CESTAT [para 8, 9, 10]
Appeal dismissed
