I-T - Where Revenue fails to issue reopening notice within four-years limitation, due to shifting of office premises, same cannot be deemed as being based on 'change of opninion': HC

I-T - Sec 54EC benefits cannot be denied if delay in investment of capital gains was on account of non-availability of tax-free bonds: ITAT

NDPS - Omission on part of prosecution to produce bulk quantity of seized opium would create a doubt in mind of Court on genuineness of samples drawn from allegedly seized contraband: SC

Cus - ADD on new/unused pneumatic radial tyres - Categorical conclusion that dumped imports had caused material injury to Domestic Industry cannot be contested either in law or on fact : CESTAT

SERVICE TAX

CC, CE & ST Vs Allied Nippon Ltd

ST - the assessee is engaged in the manufacture and export of non-asbestos bake pad/discs - The assessee would send samples in advance to an entity situated in the United Kingdom - On receipt of Certificate of Testing, the assessee would affix Certification Mark on the goods - The Department classified the activities undertaken as by "Technical Inspection & Certification Services" defined under Section 65(105) (zzi) of the Finance Act, 1994 & and under Section 66A of the Finance Act, 1994 - Therefore, the Department raised duty demand -

Held - Service received by assessee were covered under rule 3(ii) of Taxation of Services (Provided from Outside India and Received in India) Rules, 2006 - The issue is res integra and stands decided in M/s Roha Dyechem Pvt. Ltd. Versus Commissioner of Central Excise, Raigad - Hence duty demand be set aside: CESTAT (para 2, 5) - Appeal Dismissed: ALLAHABAD CESTAT

2018-TIOL-1535-CESTAT-DEL

ST - the assessee herein is registered for providing 'Tour Operator service' - The assessee paid service tax after availing abatement under Notfn No 01/2006-ST - The Department contested availment of such abatement on grounds that the assessee had already availed Cenvat credit while paying service tax - Hence duty demands were raised seeking reversal of abatement claimed -

Held - Since the entire Cenvat Credit availed has already been paid back with interest, it is to be held to be not availed ab initio - Hence the demands are set aside: CESTAT (Para 1,5) - Appeal Allowed: DELHI CESTAT

CENTRAL EXCISE

CC, CE & ST Vs Lokesh Machines Ltd

CX - the assessee manufactures CNC machines & Cylinder Blocks used for manufacture of vehicle engines - It manufacturers CNC machines on its own, while it manufactures Cylinder blocks for M/s Mahindra & Mahindra Ltd (M&M) using machines supplied by M&M for manufacture of blocks - The assessee also finished rough castings manufactured by M/s Kirloskar Ferrous Industries Ltd (KFIL) for M&M, on receipt of such rough castings from KFIL directly - The rough castings were supplied to KFIL by M&M - On investigation, the Department noted that the assessee cleared engine blocks and machine blocks to M&M on payment of duty, but the value of the duty did not include costs like amortisation charges, sales tax, freight charges for transportation of castings, cost of free items supplied by M&M and value of supplementary invoices of raw materials - Duty demand was raised on the machines allegedly under-valued - Demands for interest were raised and penalties equivalent to duty demands were imposed - The assessee paid the entire duty demand raised with interest as well as 25% of the penalty imposed on cylinder blocks & CNC machines - Penalty was also imposed under Rule 25 of CER, 2002 on M&M - Held - Penalty under Rule 26 could not be imposed because M&M had been directing the assessee to follow the correct patter of valuation & so M&M could be under the bona fide impression that the assessee was following the correct provisions when discharging duty - Hence it could not be held responsible for the incorrect valuation - Penalty cannot be imposed without bringing on record any evidence suggesting that M&M had any role to play in the under-valuation by the assessee - Consequently, the question of imposing penalty on M&M under Rule 25 does not survive, since it is not a manufacturer, purchaser or registered dealer - The findings of the adjudicating authority against the assessee are sustained: CESTAT (Para 2,8-15) - Appeals Partly Allowed: HYDERABAD CESTAT

2018-TIOL-1533-CESTAT-CHD

CX - During the period of dispute, the assessee company cleared school desks to the Municipal Corporation of Delhi, without payment of duty - The assessee availed area-based exemption under Notfn No 50/2003 - The assessee also performed bullet proofing of vehicles on job work basis - When they tried to claim area-based exemption on this activity, the same was denied on grounds that no declaration under Notfn No 50/2003 had been filed - Duty demand was raised under Business Auxiliary Services - Held - the issues at hand are as to whether or not the activity of bullet proofing of vehicles can be taxed as Business Auxiliary Services & whether area-based exemption under Notfn No 50/2003 can be claimed - Difference of opinion - The Member (J) held that the assessee did not produce the goods on behalf of the client - The assessee performs job work on the goods produced by their clients and further processing for the bullet proofing of those vehicles - Admittedly, for the period, prior to 16.06.2005, the word 'processing of goods' was missing - Hence demand of service tax for the period prior to 16.06.2005 is unsustainable - In the present case, since the period involved is prior to 16.06.2005, hence duty demand raised under Business Auxiliary Service is set aside - The Member (J) also held that since a declaration had been filed under Notfn No 50/2003 by the assessee, the Revenue could not claim otherwise, and if it found some deficiency in the declaration, it could have asked the assessee to correct it - Hence area-based exemption could not be denied - Thereupon, the Member (T) agreed with the setting aside of duty demand raised under Business Auxiliary Service - On the issue of eligibility for area-based exemption, the Member (T) held that the letter submitted by the assessee had no sanctity - Considering the Commissioner's findings in denying area-based exemption, the Member (T) noted that the assessee did not file supporting documents until much later - The Member (T) also upheld the reliance placed by the Commissioner on certification of Director of Industries to determine eligibility for area-based exemption - The same is relied on to establish substantial expansion or date of commencement of commercial production - Thereupon, the Member (T) noted that the assessee did not file supporting documents or inform the Department that it was going to increase installed capacity by 25% - Hence the Member (T) held that the assessee was ineligible for area-based exemption - Moreover the assessee company & its director was also liable for penalty u/s 11AC for alleged suppression of facts - Such difference of opinion to be resolved by Third Member: CESTAT (Para 2,8,11,14,15,21,23-26) - Case Deferred: CHANDIGARH CESTAT

CUSTOMS

NOTIFICATION

Trade Notice 10

Clarification regarding DGFT Notification No.4 & 5

Trade Notice 09

Implementation of MOU between India and Mozambique for import of pulses from Mozambique

CASE LAW

2018-TIOL-1526-CESTAT-HYD

Cus - the assessee company is a leading provider of telecom services - During the period of dispute, it equipment certain equipment, including software CD roms - It filed bills of entry for these goods and claimed benefit under Notfn No 21/2002 - The assessee classified software as filling under Chapter 85.24 & exempted from payment of duty - The Department sought to know the nature and usage of software imported along with equipment - The Department also recorded statements of various employees of the assessee & later issued SCN on grounds that the value of software not included in the value of the goods imported was incorrect, and that the same had to be included - It further stated that upon filing separate invoices the assessee was ineligible for exemption on software - The Department alleged misdeclaration of goods by the assessee - Later the adjudicating authority raised duty demand with interest & imposition of penalty & also appropriated duty already paid by the assessee - The Department claimed that the adjudicating authority should also have imposed penalty equivalent to duty amount with interest -

Held - It is undisputed that the imported software is in relation to the software embedded in the hardware & equipment imported - Hence separate sale of hardware & software is not the criteria for determining whether the price of software is to be included in the price of hardware or otherwise - This was held by the Apex Court in Hewlett Packard (India) Sales Pvt Ltd - Thus, the demands confirmed are unsustainable, as are the interest & penalty: CESTAT (Para 2,8,9) - Appeal Dismissed: HYDERABAD CESTAT

Sainik Mining & Allied Services Ltd Vs UoI

GST - the assessee company is engaged in providing coal mining, logistics and other allied services to Coal India Ltd - Upon transition to GST, the assessee was required to file declaration under Form GST TRAN-1 under Rule 117 of the Chhattisgarh Goods & Services Tax Rules, 2017 to avail tax credit - To avail such credit, the assessee filled in the requisite details much before the deadline - However on clicking the submission button for filing TRAN - 1 an error message would flash, due to which the form TRAN-1 could not be uploaded - Despite pointing out the same to the authorities, such error was not fixed - Hence the assessee sought a direction to the authorities that the assessee's application be accepted manually and input tax credit be granted.

Held - A circular had been issued by the CBIC on April 3, 2018 for redressing grievances of tax payers due to technical glitches on GST portal - In this regard an IT Grievance Redresssal Committee was set up - Relevant portions of the circular lay down procedure for resolving issue of stuck TRAN-1 forms as well as details of the nodal officer concerned - Hence this circular provides the remedy sought for by the assessee in the present writ - Besides, the State Govt also issued an order appointing the nodal officers - Thereby, the assessee is directed to approach nodal officer concerned & file representations for redressal of grievances: HC (Para 2,6,7) - Writ petition disposed off: CHHATTISGARH HIGH COURT