2019-TIOL-NEWS-301 Part 2, Dated: Monday, December 23, 2019

2019-TIOL-NEWS-301 Part 2 | Monday December 23, 2019

Dear Member,

Sending following links.

Warm Regards,
TIOL Content Team

TIOL PRIVATE LIMITED.

For assistance please call us at + 91 850 600 0282 or email us at helpdesk@tiol.in.

TIOL TUBE VIDEO

TIOLAWARDS.IN

DIRECT TAX


	2019-TIOL-2517-ITAT-MUM Nilofer Reshad Rustomji Vs ITO Whether without identifying the nature of cash transaction or credit entry in the ledger book, addition u/s 68 by rejecting the submissions of the assessee is not permissible - YES: ITAT Whether if the tenant's obligation to pay municipal tax is not disputed, then entitlement to expenses incurred cannot be refused on the mere grounds that the expenditure was of the prior period - YES: ITAT - Assessee's appeal partly allowed: MUMBAI ITAT 2019-TIOL-2516-ITAT-PUNE Orbit Electricals Pvt Ltd Vs DCIT Whether if availability of interest free funds are more than investments then no disallowance of interest expenses u/s 14A r.w. Rule 8D(2)(ii) can be made - YES : ITAT - Assessee's appeal partly allowed: PUNE ITAT 2019-TIOL-2515-ITAT-PUNE ACIT Vs Indo Global Erectors Pvt Ltd Whether amount which is not accured for receipt and for which affidavit to offer to tax at end of litigation is filed need not be taxed in relevant year - YES : ITAT - Revenue's appeal dismissed: PUNE ITAT 2019-TIOL-2514-ITAT-AHM Omni Lens Pvt Ltd Vs DCIT Whether penalty imposed u/s 271(1)(c) merits being sustained in part, where the assessee discloses all the facts & does not challenge the additions to income as sustained by the CIT(A) - YES: ITAT - Aseessee's appeal partly allowed: AHMEDABAD ITAT 2019-TIOL-2513-ITAT-AHM GH Vijapura Vs DCIT Whether if the prima facie reasons to reach the conclusion about suppression of income by way of bogus purchases remains incorrigible, validity of re-assessment proceedings cannot be questioned - YES: ITAT Whether non-maintenance of quantity details & valid purchase bills by a registered VAT dealer will amount to 100% disallowance of the purchases rather than attracting partial disallowance - YES: ITAT - Assessee's appeal dismissed: AHMEDABAD ITAT

GST CASES


	2019-TIOL-74-NAA-GST Director General Of Anti Profiteering Vs Krishna Trading Company GST - Anti Profiteering - A reference was received by the Standing Committee on Anti Profiteering u/r 128(2) of the CGST Rules alleging that the respondent had not passed on benefit of GST rate reduction from 28% to 18% on goods supplied by it and that the respondent had maintained the prices at the pre-GST rate - The matter was later forwarded to the DGAP found there to be profiteering in respect of 116 products as their base prices had increased post 15.11.2017 and that the profiteered amount was about Rs 16.45 crores - Such findings of the DGAP were considered by the NAA, whereupon explanations were sought from the respondent and proposing to fix liability for violating provisions u/s 171 of the CGST Act - Penalty was also proposed to be imposed u/s 29, 122-127 of the Act. Held - The respondent is a registered person and was bound to pass on benefit of tax reduction to his customers and cannot deny the same on grounds that profiteering proceedings were pending against the company whose goods the respondent was engaged in supplying, i.e., M/s Nestle India Ltd - The respondent also admitted to be aware of reduction in tax rates and hence should have immediately reduced his sale prices commensurate with the rate reductions - The respondent cannot claim to have not reduced the prices of the 116 products as their prices were not reduced by the manufacturer, M/s Nestle India Ltd - The respondent also did not produce any evidence proving that M/s Nestle increased the price after rate reductions or that the respondent raised the issue of price reduction with M/s Nestle after the tax reduction was notified - Hence the respondent cannot shift the blame onto M/s Nestle and pendency of profiteering proceedings against the latter has no connection while determining accountability of the respondent for profiteering u/s 171(1) of the Act, as he is responsible for passing on benefit on his own account - Granting of discounts also is not tantamount to passing on benefit of tax reductions as they are given as normal trade practice by the respondent - The respondent also could not have passed the benefit of tax reduction available on purchase of one product as this benefit was required to be passed on every product to each customer who purchased that product as per Section 171(1) of the Act - Hence the respondent clearly indulged in profiteering and did not pass on benefit of tax rate reduction given vide Notfn No 41/2017-CT(R) - Hence the respondent is liable to face action u/r 133 of CGST Rules - The respondent is also directed to reduce the sale prices of the products commensurate with reduction in tax rates - As the recipients are not identifiable, the respondent is directed to deposit the profiteered amount in the CWF along with 18% interest - Notice be issued proposing to impose penalty u/s 171(3A) r/w Rule 133(3)(d) of the CGST Rules: NAA - Application disposed of: NAA 2019-TIOL-2932-HC-DEL-GST Soni Traders Vs UoI GST - The petitioner is engaged in the purchase and sale of bearings - Upon introduction of CGST Act, the petitioner had some opening stock on which it was entitled to CVD duty credit and VAT input tax credit - The petitioner was also entitled to transition of CVD credit as per Section 140(3), 140(4) & 140(5) - In order to avail transition of credit, the petitioner was required to file declaration in Form GST TRAN-1 within the stipulated period of 90 days - Although the time period for filing Form TRAN-1 had been extended several times, the same could not be uploaded due to technical glitches - The petitioner could not avail transition of credit on account of low bandwidth, considering the huge number of assessees across India trying to submit the form before the due date - The petitioner also approached the authorities concerned, whereupon it was asked to produce evidence of technical glitches faced - The petitioner claimed that filing Form GST TRAN-1 was a new concept for it, due to which the petitioner was unaware of keeping a screenshot in case it faced technical glitches - As the petitioner received no response from the authorities, the present petition was filed in order to claim the CVD credit refund. Held - As per Notfn No. 49/2019 dated 09.10.2019 issued by CBIC the deadline for filing Form GST TRAN-1 has been extended to 31.12.2019 - This itself demonstrates that the authorities were aware of the inability of registered persons to upload Form GST TRAN-1 due to technical glitches in the system - Hence it is not fair to expect that each person who may not have been able to upload the Form GST TRAN-1 should have kept some evidence of it - Many dealers and traders come from rural and semi literate backgrounds and may not have had the presence of mind to create any record of having tried and failed to upload the Form GST TRAN-1 - Hence they cannot be made to suffer, more so when the system itself is not efficient - From the documents on record, it emerges that the Revenue authorities have no cogent grounds to deny the benefit of Notfn No 49/2019 - Besides, the credit in favour of an assessee is property & the assessee could not be deprived of the said property save by authority of law in terms of Article 300 (A) of the Constitution of India - Hence the authorities are directed to either open the online portal to enable the petitioner to file Form GST TRAN-1 electronically or accept the same manually before 31.12.2019 - The form may then be processed as per law: HC - Writ petition disposed of: DELHI HIGH COURT 2019-TIOL-2931-HC-DEL-GST SRC Aviation Pvt Ltd Vs UoI GST - The petitioner is engaged in the purchase and sale of bearings - Upon introduction of CGST Act, the petitioner had some opening stock on which it was entitled to CVD duty credit and VAT input tax credit - The petitioner was also entitled to transition of CVD credit as per Section 140(3), 140(4) & 140(5) - In order to avail transition of credit, the petitioner was required to file declaration in Form GST TRAN-1 within the stipulated period of 90 days - Although the time period for filing Form TRAN-1 had been extended several times, the same could not be uploaded due to technical glitches - The petitioner could not avail transition of credit on account of low bandwidth, considering the huge number of assessees across India trying to submit the form before the due date - The petitioner also approached the authorities concerned, whereupon it was asked to produce evidence of technical glitches faced - The petitioner claimed that filing Form GST TRAN-1 was a new concept for it, due to which the petitioner was unaware of keeping a screenshot in case it faced technical glitches - As the petitioner received no response from the authorities, the present petition was filed in order to claim the CVD credit refund. Held - As per Notfn No. 49/2019 dated 09.10.2019 issued by CBIC the deadline for filing Form GST TRAN-1 has been extended to 31.12.2019 - This itself demonstrates that the authorities were aware of the inability of registered persons to upload Form GST TRAN-1 due to technical glitches in the system - Hence it is not fair to expect that each person who may not have been able to upload the Form GST TRAN-1 should have kept some evidence of it - Many dealers and traders come from rural and semi literate backgrounds and may not have had the presence of mind to create any record of having tried and failed to upload the Form GST TRAN-1 - Hence they cannot be made to suffer, more so when the system itself is not efficient - From the documents on record, it emerges that the Revenue authorities have no cogent grounds to deny the benefit of Notfn No 49/2019 - Besides, the credit in favour of an assessee is property & the assessee could not be deprived of the said property save by authority of law in terms of Article 300 (A) of the Constitution of India - Hence the authorities are directed to either open the online portal to enable the petitioner to file Form GST TRAN-1 electronically or accept the same manually before 31.12.2019 - The form may then be processed as per law: HC - Writ petition disposed of: DELHI HIGH COURT 2019-TIOL-2930-HC-DEL-GST AB Pal Electricals Pvt Ltd Vs UoI GST - The petitioner is engaged in the purchase and sale of bearings - Upon introduction of CGST Act, the petitioner had some opening stock on which it was entitled to CVD duty credit and VAT input tax credit - The petitioner was also entitled to transition of CVD credit as per Section 140(3), 140(4) & 140(5) - In order to avail transition of credit, the petitioner was required to file declaration in Form GST TRAN-1 within the stipulated period of 90 days - Although the time period for filing Form TRAN-1 had been extended several times, the same could not be uploaded due to technical glitches - The petitioner could not avail transition of credit on account of low bandwidth, considering the huge number of assessees across India trying to submit the form before the due date - The petitioner also approached the authorities concerned, whereupon it was asked to produce evidence of technical glitches faced - The petitioner claimed that filing Form GST TRAN-1 was a new concept for it, due to which the petitioner was unaware of keeping a screenshot in case it faced technical glitches - As the petitioner received no response from the authorities, the present petition was filed in order to claim the CVD credit refund. Held - As per Notification No. 49/2019 dated 09.10.2019 issued by CBIC the deadline for filing Form GST TRAN-1 has been extended to 31.12.2019 - This itself demonstrates that the authorities were aware of the inability of registered persons to upload Form GST TRAN-1 due to technical glitches in the system - Hence it is not fair to expect that each person who may not have been able to upload the Form GST TRAN-1 should have kept some evidence of it - Many dealers and traders come from rural and semi literate backgrounds and may not have had the presence of mind to create any record of having tried and failed to upload the Form GST TRAN-1 - Hence they cannot be made to suffer, more so when the system itself is not efficient - From the documents on record, it emerges that the Revenue authorities have no cogent grounds to deny the benefit of Notfn No 49/2019 - Besides, the credit in favour of an assessee is property & the assessee could not be deprived of the said property save by authority of law in terms of Article 300 (A) of the Constitution of India - Hence the authorities are directed to either open the online portal to enable the petitioner to file Form GST TRAN-1 electronically or accept the same manually before 31.12.2019 - The form may then be processed as per law: HC - Writ petition disposed of: DELHI HIGH COURT 2019-TIOL-2929-HC-DEL-GST Triveni Needles Pvt Ltd Vs UoI GST - The petitioner is engaged in the purchase and sale of bearings - Upon introduction of CGST Act, the petitioner had some opening stock on which it was entitled to CVD duty credit and VAT input tax credit - The petitioner was also entitled to transition of CVD credit as per Section 140(3), 140(4) & 140(5) - In order to avail transition of credit, the petitioner was required to file declaration in Form GST TRAN-1 within the stipulated period of 90 days - Although the time period for filing Form TRAN-1 had been extended several times, the same could not be uploaded due to technical glitches - The petitioner could not avail transition of credit on account of low bandwidth, considering the huge number of assessees across India trying to submit the form before the due date - The petitioner also approached the authorities concerned, whereupon it was asked to produce evidence of technical glitches faced - The petitioner claimed that filing Form GST TRAN-1 was a new concept for it, due to which the petitioner was unaware of keeping a screenshot in case it faced technical glitches - As the petitioner received no response from the authorities, the present petition was filed in order to claim the CVD credit refund. Held - As per Notification No. 49/2019 dated 09.10.2019 issued by CBIC the deadline for filing Form GST TRAN-1 has been extended to 31.12.2019 - This itself demonstrates that the authorities were aware of the inability of registered persons to upload Form GST TRAN-1 due to technical glitches in the system - Hence it is not fair to expect that each person who may not have been able to upload the Form GST TRAN-1 should have kept some evidence of it - Many dealers and traders come from rural and semi literate backgrounds and may not have had the presence of mind to create any record of having tried and failed to upload the Form GST TRAN-1 - Hence they cannot be made to suffer, more so when the system itself is not efficient - From the documents on record, it emerges that the Revenue authorities have no cogent grounds to deny the benefit of Notfn No 49/2019 - Besides, the credit in favour of an assessee is property & the assessee could not be deprived of the said property save by authority of law in terms of Article 300 (A) of the Constitution of India - Hence the authorities are directed to either open the online portal to enable the petitioner to file Form GST TRAN-1 electronically or accept the same manually before 31.12.2019 - The form may then be processed as per law: HC - Writ petition disposed of: DELHI HIGH COURT

INDIRECT TAX

SERVICE TAX

2019-TIOL-2933-HC-P&H-ST

Awla Infra Vs CCT & CE

ST - The petitioner, a partnership firm is owner of a Godown let out to HAFED, for the purpose of storage of food grains - HAFED while tendering the rent for relevant periods had deducted Service Tax, which was concededly deposited with Tax Authorities - Subsequently, it was found that the said rented premises being used for agriculture purpose was exempt from payment of Service Tax - The HAFED-tenant, on such a premise had retained the lease amount to be paid to the petitioner firm equivalent to Service Tax paid to the Tax Authorities - The petitioner firm having deposited the tax filed a claim for refund, which has been dismissed on the ground of limitation - At the time of hearing, the Revenue has produced a copy of letter dated 13.12.2019 written by Assistant Commissioner, Govt. of India, Ministry of Finance, Department of Revenue and addressed to Deputy Commissioner (Law)CGST Commissionerate, Rohtak stating therein that in terms of the order dated 24.9.2019 passed by this Court, refund claim submitted by FCI was examined and thereafter cheque dated 13.12.2019 amounting to Rs.2,58,19,711/- favouring FCI, Hisar was handed over to the representative of FCI Hisar - It is further stated therein that since refund claim of Rs.85,04,673/- claimed by the party in refund application was not proper and correct, a SCN dated 13.12.2019 has also been issued to FCI - Further, the petitioner concedes that in terms of order dated 24.9.2019 passed by this Court, petitioner-landlord has been paid due amount by HAFED, which was released by competent authority through FCI to the tenant- HAFED - In this view of matter, the parties are ad idem that the instant writ petition has become infructuous: HC

- Petition disposed of: PUNJAB AND HARYANA HIGH COURT

2019-TIOL-2927-HC-DEL-ST

Intertek India Pvt Ltd Vs CBIC

ST - The assessee-company, through the present petition, assailed summons issued to it by the Revenue authorities concerned, in respect of an inquiry being conducted - The petitioner drew attention to certain communications received by it, requiring the company and its director to present certain documents as called for - The assessee claimed that the summons invoked Rule 5A of the Service Tax Rules, which had been struck down by the High Court of Delhi in Mega Cabs (P) Ltd. Vs Union of India - Such decision is challenged before the Supreme Court & its operation has been stayed - The assessee also stated that such inquiry had been launched in respect of short payment of service tax and reversal of cenvat credit - The assessee thus claimed that as per Section 174(2)(e) of the CGST Act, the many acts repealed by virtue of this provision, also includes the Finance Act 1994 which enables levying of service tax.

Held - The reliance placed by the assessee on the decision in Mega Cabs (P) Ltd. Vs Union of India is misplaced as such decision was stayed by the Supreme Court and that the Division Bench only declared that Rule 5A(2) as amended to the extent that it authorized Service Tax Department officers or the audit party to seek production of documents on demand, as ultra vires of the Finance Act - It did not interfere with the power of the authorities vested by Rule 5A(1) and the Revenue's power to conduct investigations & inquiry - Hence it cannot be said that in event of any breach of service tax laws, whereby the assessee may have taken undue advantage by not reversing Cenvat credit, the assessee should get away without being investigated or inquired into: HC

- Writ petitions dismissed: DELHI HIGH COURT

2019-TIOL-3620-CESTAT-MUM

Vishay Semiconductor India Pvt Ltd Vs CC & GST

ST - The assessee, as a SEZ unit, engaged in manufacture of export of semiconductors - They filed refund claim for Rs.2,47,040/- of the service tax paid on various specified services used in or in relation to authorized operation in SEZ as per Notfn 9/2009-ST as amended vide Notfn 15/2009-ST - Out of the said amount, the Adjudicating authority rejected Rs.1,31,142/- - The club or association service is initially not included in approved list, but later forming a part of the approved list - Hence, refund cannot be denied to assessee in view of the judgment in case of Biocon Ltd - 2019-TIOL-797-CESTAT-BANG - Similarly, since the service tax paid on life insurance service of employees of assessee being included in the approved list, refund on this count cannot be denied to them in view of the judgment in case of Tata Consultancy Services Ltd - 2012-TIOL-1034-CESTAT-MUM - Also, various input services which are wholly consumed within the SEZ, the service tax paid on such services cannot be denied as refund, in view of the principle of law laid down in case of Barclays Ltd - 2015-TIOL-82-CESTAT-MUM - The impugned order being devoid of merit is set aside: CESTAT

- Appeal allowed: MUMBAI CESTAT

2019-TIOL-3618-CESTAT-CHD

Kunda Singh Vs CCE & ST

ST - The assessee is in appeal against impugned O-I-A confirming classification of service rendered by them under category of "Cargo Handling Service", confirming the demand of Service Tax with interest and imposing penalties under Sections 75A, 76, 77 and 78 of FA, 1994 - The assessee was working as contractor for M/s. SIL and they engaged 15-20 persons and provided them as labour to M/s. SIL, who are engaged in the manufacture of papers - The labour so contracted were given the job work of packing and loading of soda ash, loading of wastage of affluent treatment plant, unloading and staking of various raw materials on to the trucks at the factory premises of M/s. SIL - The case of assessee is that they were merely providing contract labour for job work to be undertaken - The Revenue was of the view that activity amounted to providing of "Cargo Handling Service" on which Service Tax is payable - As the issue has already been settled by Tribunal in case of Jai Ram Yadav - 2015-TIOL-834-CESTAT-DEL, therefore, assessee is not liable to pay service tax under category of cargo handling service - The impugned orders are set aside: CESTAT

- Appeals allowed: CHANDIGARH CESTAT

CENTRAL EXCISE

2019-TIOL-3622-CESTAT-BANG

Outshiny India Apparels Pvt Ltd Vs CCT

CX - The assessee is a private limited company with Shri Sridhar Thirunakara and Shri Srikanth Thirunakara as Directors and are registered under Central Excise in respect of manufacturing premises located at Kodigehalli, Nelamangala and Ramanagara for the manufacture and clearance of bags and soft luggage items - During investigation, it is indicated that the different units of assessee had manufactured and cleared excisable goods without payment of appropriate Central Excise duty - The said goods were seized under presumption that the same had been manufactured in premises of Outshiny Nelamangala and had been stored by them in the premises located at Outshiny Kodigehalli with intention to clear without payment of duty - A SCN was issued to assessee proposing to demand excise duty along with interest and penalties - For the impugned goods, another SCN was issued to assessee which was finally decided by Commissioner (A) vide his order dt. 14/06/2019 wherein the Commissioner (A) has held that the demand in respect of goods seized on premises of Outshiny Kodigehalli was not sustainable since there was no evidence to prove that the assessee was attempting to clear them without payment of duty - The said finding was based on decision of Tribunal in assessee’s own case wherein the Tribunal in - 2019-TIOL-3070-CESTAT-BANG held that in the absence of any evidence that excisable goods found unaccounted in the registered premises were intended to be removed, the duty demand would be unsustainable - Further, there is no dispute about the fact that the goods in question i.e. 1000 numbers of bags were found lying in the assessee’s own premises and there is no evidence placed on record that the assessee had intended to clear the same without payment of duty from the premises of Outshiny Kodigehalli - Therefore, unaccountal of the goods by assessee at best is only a technical breach - The impugned order holding that the seized goods is liable to be confiscated is bad in law and unsustainable - For the same reasons, the imposition of penalty on assessees are set aside: CESTAT

- Appeals allowed: BANGALORE CESTAT

2019-TIOL-3619-CESTAT-CHD

Ranbir Steel Industry Vs CCE & ST

CX - The appeal has been filed by assessee against demand of central excise duty and imposition of penalty - Assessee pointed out that on 18.01.2007, officers of DGCEI visited their factory premises and they found small shortage of 20 MTs raw material and some katcha slips were recovered from one Sh. Farsh Bahadur - On an estimate basis, it was alleged that the assessee received of 1657 MTs of raw material (ingots) purchased/received by them and on an estimate basis it was alleged that 2502 MTs of finished goods were cleared by assessee without payment of duty - The entire case is based on certain katcha slips, which contained vehicle numbers only - On that basis various statements were recorded - The statement of primary witness Sh. Farsh Bahadur cannot be relied as the Revenue failed to produce him for the cross examination - Only four out of twelve suppliers were produced by the Revenue for cross examination and they have totally denied any sale of the goods in cash to the assessee - It is also seen that the Revenue is not bothered to make any enquiry with the alleged buyers of finished goods, nor any enquiry with the transporters/drivers of the vehicles has been done - In this background, since, none of the statements could be relied, the only evidence which remains with the Revenue is uncorroborated katcha slips - The katcha slips by themselves are not sufficient to substantiate the charge of clandestine manufacture and clearance - The impugned order cannot be upheld for lack of evidence: CESTAT

- Appeal allowed: CHANDIGARH CESTAT

CUSTOMS

2019-TIOL-2928-HC-MAD-CUS

Tata Teleservices Ltd Vs CC

Cus - The assessee-company imported consignments of fixed wireless telephones during the relevant periods - At the time of filing BoE, the assessee classified the products under sub-heading 85252017 of the Customs Tariff Act r/w Notfn No 21/2002 and sought exemption under such notification - The Revenue doubted the applicability of such notification, whereupon the assessee paid duty under protest for clearing the consignment - The assessee then raised the issue of applicability of Notfn No 21/2002 before the Apex Court, whereupon the court held that the provisions of the Notification would be applicable onto the assessee in respect of the wireless telephones imported by it - On the strength of such favorable decision, the assessee filed application for refund of duty - The original adjudicating authority sanctioned the refund except in respect of one BoE, which was rejected as being time barred - Both the assessee & the Revenue appealed to the Commr.(A), who remanded the matter to examine the issue of unjust enrichment and accordingly decide upon the refund claim - Later, the Tribunal too quashed the assessee's appeals - Hence the present appeals before the High Court. Held - The issue for consideration is whether the provisions of Section 18(5) are to have prospective effect only w.e.f. 13.07.2006 and if so any applications for refund filed prior to such date would not be treated in applying the principle of unjust enrichment and if so as to whether the assessee is entitled to get refund automatically without having reference to the procedure contemplated u/s 18(5) - In such backdrop, it is to be seen as to whether or not the remand order passed by the Commr.(A) as confirmed by the Tribunal are sustainable - A reading of the provisions of Section 18(5) clarifies that the moment the goods are subjected to final assessment or re-assessment, where it is found that the duty paid is already in excess, then only the refund issue would come - Section 18(5) clarifies that what is the duty amount refundable u/s 18(2) has to be refunded in the manner provided u/s 18(5) - The eligibility clause for getting the refund of excess duty paid emanates from Section 18(2) which clarifies that once assessment is finally made or re-assessed, then only whether the claimant is entitled to refund, has to be decided - Once eligibility for refund is decided, the same is subject to the test of unjust enrichment as per Section 18(5)(a) - Also considering the decision of the Tribunal in Commissioner of Customs (Export), Chennai v. Scientific Instruments Company Ltd it is held that the assessee must necessarily satisfy the test of unjust enrichment before the original authority - In such circumstances, the Tribunal's order does not warrant interference with: HC

- Assessee's appeals dismissed: MADRAS HIGH COURT

2019-TIOL-3621-CESTAT-MAD

NT Rama Rao And Company Vs CC

Cus - Assessee is Customs House Agent / Customs Broker operating in Chennai - It is alleged that Red Sanders were being smuggled under the guise of Natural Slate Stone in the container covered by shipping bill filed by one M/s. Amrita Export for export of natural slate stone - It is clear that the customs broker has filed a shipping bill for purported export of natural slate stone on behalf of M/s.Amrita Export - The same has been permitted to be stuffed into the container; after due examination by the Preventive Officer posted in CFS, a onetime bottle seal has also been affixed - The allegations against the assessee appear to be based on the statements of personnel of the customs broker - Shri S. Muthukrishnan incharge of customs broker in his statement and Shri N.V.S. Prasad, General Manager of customs broker have accepted that they have never met the exporter and have not verified the KYC details and genuineness of IEC holder and failed to notice the difference in the name of the exporter - The non-verification of KYC documents per se has not resulted in committal of any grave offence because of the fact that the goods declared in said shipping bill were correct as per declaration; the same goods were allowed to be stuffed into the container by Preventive Officer and the container was sealed - Admittedly, the offence has taken place after stuffing of container and sealing of same that is beyond the involvement of customs broker - However, the only issue on which the assessee appear to have erred is that they were not in a position to identify Shri Rajesh Kumar who was projecting himself as the person incharge of the exporter - The customs broker should have exercised a due diligence in verifying KYC norms and the identity of exporter and their persons and could have found out the difference in name of the exporter - However, for this purpose, revocation of licence is not warranted - Though forfeiture of security deposit and imposition of penalty are sustainable, revocation of customs broker licence cannot be sustained - In view of the decision of Madras High Court in case of Transport Logistics - 2016-TIOL-1002-HC-MAD-CUS, the forfeiture of security deposit of Rs.50,000/- and imposition of penalty of Rs.50,000/- is upheld while setting aside the revocation of licence of the customs broker: CESTAT

- Appeal partly allowed: CHENNAI CESTAT

HIGH LIGHTS (SISTER PORTAL)

TII

TP - SAP implementation expenses cannot be considered as having arms length price of 'Nil', on ground that it is stewardship activity: ITAT

TP - TPO is statutorily obliged to propose adjustments in ALP only after following methods laid down as per Sec 92C: ITAT

DTAA - Restriction imposed for admitting additional claim without filing revised returns, does not apply to Appellate authorities: ITAT

TIOL CORPLAWS

PMLA - Tribunal's authority does not extend to order of de-freezing bank account which is not subject of provisional attachment order : Tribunal

IBC - Obtaining approval of Competition Commission before approval of resolution plan which proposes combination is not mandatory for CoC : NCLAT

Companies Act - NCLT/NCLAT have discretion to recall order of striking off of companies name if there are sufficient prove regarding continuous operation of business & it is in stakeholders interest: NCLT

NI Act - If cheque was issued after resignation of director of the company, question of vicarious liability u/s 141 does not arise for offence of dishonour of cheque: HC

NEWS FLASH


	Jharkhand Assembly results - BJP trailing but may emerge single largest party