CIT Vs Mohammed Meeran Shahul Hameed

Having heard the parties, the Supreme Court condoned the delay and issued notices to respective parties directing their appearance for further hearing on the issue of 'order passed without proper communication'.

- Notice issued: SUPREME COURT OF INDIA

2020-TIOL-03-SC-IT

PR CIT Vs Ashok Kumar Maneklal Parikh

Having heard the parties, the Supreme Court condoned the delay and dismisses the SLP, thus concurring with the opinion of High Court on the issue of penalty in case of bonafide belief of taxpayer.

- Revenue's SLP dismissed: SUPREME COURT OF INDIA

2020-TIOL-02-SC-IT

PR CIT Vs United Shippers Ltd

In SLP, the Apex Court condoned the delay and dismissed the SLP.

- Revenue's special leave petition dismissed: SUPREME COURT OF INDIA

2020-TIOL-01-SC-IT

PR CIT Vs Khyati Realtors Pvt Ltd

In SLP, the Apex Court directs that notice be issued to the parties.

- Notice issued: SUPREME COURT OF INDIA

2020-TIOL-54-HC-KAR-IT

KBR Infratch Ltd Vs ACIT

Whether financial stringency will justify nonremittance of TDS to the Government Account and proper excuse from levy of penalty - NO: HC

- Assessee's appeal dismissed: KARNATAKA HIGH COURT

2020-TIOL-53-HC-AHM-IT

Gayatri Microns Ltd Vs ACIT

Whether the reassessment notice issued u/s 148 to an amalgamated company which has ceased to exist after the approval of composite scheme of arrangement is illegal & without jurisdiction - YES: HC

- Assessee's writ petition allowed: GUJARAT HIGH COURT

2020-TIOL-46-HC-DEL-IT

Vedanta Ltd Vs ACIT

Whether re-assessment proceedings are sustainable, where the assessee does not disclose the fact that it has dealings with an entity engaged in providing accomodation entries & where the AO accepted the assessee's claims of genuineness of transactions, without scrutiny - YES: HC

- Assessee's writ petition dismissed: DELHI HIGH COURT

2020-TIOL-50-ITAT-DEL

Delhi Aviation Services Pvt Ltd Vs Pr.CIT

Whether Pr. CIT is justified in exercise of powers u/s 263 if no specific query has been raised by the AO on allowability of depreciation at higher rate and has simply relied on details provided in financial statements - YES : ITAT

- Assessee's appeal dismissed: DELHI ITAT

2020-TIOL-49-ITAT-DEL

HCL Comnet Systems And Services Ltd Vs DCIT

Whether formula envisaged in Rule 8D cannot be applied to compute disallowance if there is neither opening balance nor there is any closing balance of any investment as in such situation it is impossible to determine average value of investment - YES : ITAT

- Assessee's appeal allowed: DELHI ITAT

2020-TIOL-48-ITAT-DEL

Integrated Global Solutions Pvt Ltd Vs ACIT

Whether re-assessment is valid based on mere surmises about bogus purchase of software - NO : ITAT

- Assessee's appeal allowed: DELHI ITAT

2020-TIOL-47-ITAT-MUM

ACIT Vs Snejay Gems

Whether difference in value while purchasing diamonds is to be treated as unexplained expenditure as per proviso to Section 69C, such amount cannot be included in closing stock or allowed as deduction - YES: ITAT

- Revenue's appeal partly allowed: MUMBAI ITAT

2020-TIOL-46-ITAT-AMRITSAR

Unique Constructions Vs ITO

Whether estimation of net profit rate based on original returns is to be restricted to 5% when the assessee had filed revised returns and the original return was to be treated as withdrawn - YES: ITAT

- Assessee's appeal partly allowed: AMRITSAR ITAT

Director General Of Anti Profiteering Vs Pyramid Arcades Pvt Ltd

GST - Anti-profiteering - DGAP in its investigation has observed that the ITC as a percentage of the total turnover which was available to the respondent during the pre-GST period was 2.76% whereas during the post-GST period it was 7.28% which meant that the Respondent has benefited from additional ITC to the extent of 4.52% of the turnover during the period July 2017 to December 2018 and hence the provisions of s.171 of the Act have been contravened - Inasmuch as the respondent has not passed on the benefit of ITC to his customers and has profiteered by an amount of Rs.51,12,928/- including GST @12% on the base profiteered amount of Rs.45,65,114/- - contention of the respondent that the applicant had filed complaint only to blackmail them and that such activities should not be encouraged, Authority observes that the applicant is a homebuyer in respondent's project and hence a recipient of the service supplied by respondent and, therefore, he falls within the definition of ‘interested party' as per Explanation given under rule 137(c)(b) of the CGST Rules - moreover, ‘any other person' can file complaint for violation of the provisions of s.171 of the Act as per rule 128(1) of the Rules - insofar as the applicant is concerned, the respondent had realised an additional amount of Rs.1,33,503/- from him - since the buyers are identifiable as per the documents placed on record, the respondent is required to pass on the profiteered amount to them including the applicant along with an interest @18% per annum from the dates from which the above amount was collected by him from the buyers till the payment is made, within a period of three months - SCN to be issued for imposition of penalty in terms of s.171(3A) of the CGST Act r/w rule 133(3)(d) of the CGST Rules for the above contravention - Commissioners of CGST/SGST, Maharashtra to monitor this order under the supervision of the DGAP and submit a compliance report within four months: NAA

- Application allowed: NAA

2020-TIOL-50-HC-MAD-ST

ST - Petitioner is a registered company u/s 25 of the Indian Companies Act, 1956 and collects subscription and usage charges from its members - Since, levy of service tax on service provided by club/association was introduced in the Finance Act, 1994, it was the view of the Service Tax Department that clubs/associations in the country were liable to pay the service tax for the services rendered by them to their members - Clubs contented that there was no provision of service by applying principle of mutuality - However, since the department kept insisting on payment of service tax, the petitioner obtained service of registration and started to collect the service of tax for the use of its rooms alone from July 2005 and continued until 31.03.2014 and paid service tax - Since no service tax was paid for the services provided to its members, the petitioner was issued two Show Cause Notices and which were confirmed totalling Rs. 47,90,770/- - However, petitioner has confined the present writ petition against Order-in-Original No.4/2016 dated 07.01.2016 qua the first Show Cause Notice SL.No.33/2014-ST(JC) dated 21.04.2014 - Instead of filing an appeal before the Appellate Commissioner against the order, the petitioner has filed the present writ petition citing the decision of the Gujarat High Court in Sports Club of Gujarat Ltd - 2013-TIOL-528-HC-AHM-ST and the Jharkhand High Court in Ranchi Club Ltd - 2012-TIOL-1031-HC-JHARKHAND-ST wherein it is held that no service tax was payable for the services rendered by the "clubs or association" to its members applying the principle of mutuality - Petitioner has also cited the apex court decision in Ranchi Club Ltd. 2019-TIOL-449-SC-ST-LB and submits that the Supreme Court has answered the issue in favour of the petitioner and prays for quashing of the impugned order.

Held: Supreme Court has considered the provisions of the Finance Act, 1994, as it stood prior to and after passing of the Finance Act, 2005 and after 2012 after the advent of negative list with the introduction of the definition of "service" in section 65B (44) of the Finance Act, 1994 vide Finance Act, 2012 w.e.f. 01.07.2012 and concluded that the Jharkhand High Court and the Gujarat High Court are correct in their view of the law in following Young Men's Indian Association and that from 2005 onwards, the Finance Act of 1994 does not purport to levy service tax on members' clubs in the incorporated form - following the said decision, petition is allowed - impugned order is quashed qua demand confirmed against the Show Cause Notice SL.No.33/2014-ST(JC) dated 21.04.2014 - Since no remedy has been sought against the demand confirmed against the 2nd mentioned Show Cause Notice SL.No.88/2015-ADC dated 16.10.2015, liberty is given to the petitioner to work out the remedy against the said demand confirmed in impugned order in accordance with law - Petition is allowed: High Court [para 19 to 23]

- Petition allowed: MADRAS HIGH COURT

2020-TIOL-47-CESTAT-MUM

S Narendra Kumar And Company Vs CCGST

ST - The assessee-company manufactures various kinds of masala products such as sabzi masala, chhole masala, for which it purchases agricultural produce to enhance flavors and aroma of the food, such as chilly, turmeric, black pepper, etc. - After mixing them, the assessee packed the products in pouches & cleared them - For distributing the products, the assessee entered into an agreement with M/s Gati Kintestsu Express Pvt. Ltd. (GKEPL) for transporting the goods to different buyers across India through rail - The assessee also availed services of other transporters for transportation of goods by road - M/s GKEPL issued invoices for transporting the assessee's products by rail - Since transportation by rail was clearly exempted from duty as per Notfn No 25/2012-ST, M/s GKEPL did not charge service tax in the invoices issued by them to the assessee - The assessee was under mistaken belief of being liable to pay duty under reverse charge, computed service tax and paid the same under some other accounting head - Later, the assessee realised its mistake and claimed refund of the amount - SCN was issued proposing to reject the refund claim - Such findings were confirmed on adjudication and then sustained by the Commr.(A) - Hence the present appeal.

Held - It is a general principle of interpretation that the term includes or including when used, enlarges the meaning of the expression defined so as to comprehend not only such as things as they signify according to their natural import but also those things which the clause declares that they was included - It also means that the legislature does not intend to restrict the scope of the clause - This makes the definition enumerative but not exhaustive - When a clause uses the word includes it is prima facie extensive - Time and again it has been held that spices are food stuff, which could be any substance that is used as food or to make food and therefore, the spices/masale can be termed as 'food stuffs' and falls within the exemption notification - Regarding the issue of the amount deposited by the assessee wrongly under different head, it is clear that the amount of service tax for transportation of goods by rail has been wrongly paid by the assessee therefore paying service tax under wrong accounting code or under wrong head cannot be a valid reason for denying the valid refund claim of the service tax erroneously paid by the assessee - Hence the assessee is entitled for refund: CESTAT

- Assessee's appeal allowed: MUMBAI CESTAT

CENTRAL EXCISE

2020-TIOL-59-CESTAT-BANG

Keltech Energies Ltd Vs CCE & ST

CX - CENVAT - Once the appellant has already reversed the proportionate credit attributable to Input services used for the exempted goods and the same has been accepted in the SCN and has also been appropriated, there arises no question of demand of amount of 10% of value of the exempted goods in terms of rule 6(3) of CCR, 2004: CESTAT [para 6]

CX - Limitation - Demand is barred by limitation for the reason that during the impugned period July 2005 to March 2008, there was a dispute regarding statutory interpretation of Rule 6 of the CCR and subsequently there was a retrospective amendment vide Finance Act, 2010: CESTAT [para 6]

CX - Limitation - Present proceedings were initiated on the basis of audit objections - It is well settled that no suppression can be alleged on the basis of audit objection - appellant has also placed on record an Audit Note dated 08.02.2010 wherein Department itself has recorded that they had previously conducted audit of the records of the appellant during December 2008 audited up to March 2008 and no objection on the issue was raised - therefore, as the CENVAT credit availed was in the knowledge of the department, the question of suppression of facts with intent to evade payment of duty does not arise and cannot be alleged against the appellant - Impugned order is unsustainable and is, therefore, set aside - Appeal allowed: CESTAT [para 6, 7]

- Appeal allowed: BANGALORE CESTAT

2020-TIOL-49-CESTAT-AHM

Asoka Cotsyn Vs CCE

CX - Appellants are engaged in manufacture of Cotton Yarn and supply the same to inter-related units/group companies.- They were valuing their goods on cost construction method - Since at the time of the removal, the cost of manufacturing was not available, they were paying duty on provisional value and after the finalization of the books of the companies, they were calculating the exact cost of manufacture and were paying a differential duty - Issue involved is whether the appellant is required to pay interest on such differential duty from the due date of the duty payment in accordance with the date of removal of the goods or from the date of payment of the differential duty.

Held: Supreme Court in the case of Steel Authority of India Ltd. 2019-TIOL-204-SC-CX-LB has held that the interest is chargeable from the due date as prescribed in rule 8 of Central Excise Rules, 2002 and not from the payment of differential duty, therefore, the demand of interest on merit is sustainable - since supply of the goods is to their own division who are entitled for Cenvat Credit, due to Revenue neutral situation, extended period could not have been invoked - resultantly, appeal No. E/174/2012 which involves entire demand of extended period is allowed - insofar as appeal no. E/11927/2019 is concerned, since the amount is very meagre, the appellant is not contesting and they concede that the amount of the demand of interest shall be paid - appeal No. E/11927/2019 is, therefore, dismissed: CESTAT [para 4, 5]

- Appeal allowed/dismissed: AHMEDABAD CESTAT

2020-TIOL-48-CESTAT-BANG

India Ems Technologies Pvt Ltd Vs CCT

CX - Appellants are manufacturers of PCB assemblies and during February 2015, they had declared duty payable as Rs.17,09,145/- in their ER-1 returns but in the credit utilized column, they had paid only Rs.6,827/- - They claimed that certain goods were returned and they have adjusted the duty paid on such returned goods against their liability - Since no documents were furnished, a notice dated 10/01/2017 was issued demanding Rs.17,02,318/- being the balance of the duty payable as indicated in their ER-1 returns - After considering the reply of the assessee, the adjudicating authority confirmed the demand made in the notice along with interest and 10% penalty - Commissioner(A) rejected assessees appeal, therefore, appeal before CESTAT.

Held: Commissioner (A) has not appreciated the facts properly and has not considered the factum of return of the goods and taking back the credit by the appellant - Since the impugned order is not clear and has not considered the material facts, therefore, in the interest of justice, case remanded back to the original authority with a direction to the original authority to determine whether the appellant is entitled to the CENVAT credit of Rs.17,02,316/- as claimed by the appellant under Rule 16 of the Central Excise Rules, 2002: CESTAT [para 6]

- Matter remanded: BANGALORE CESTAT

CUSTOMS

2020-TIOL-52-HC-KERALA-NDPS

Superintendent of Customs Vs Ahammed Kabir

NDPS - Petitions are filed by the Superintendent of Customs, Air Intelligence Unit, Cochin International Airport, under Sections 439(2) and 482 Cr.P.C, for cancellation of the bail granted to accused 1, 2 and 4 to 6 in the case which was registered under Sections 23(c), 27A, 28 and 29 of the Narcotic Drugs And Psychotropic Substances Act, 1985 – It is the submission of the counsel for Revenue that the Sessions Judge had granted bail to the respondents/accused, except to the first accused, without adverting to the provision contained under Section 37(1)(b) of the Act and without being satisfied of the conditions mentioned therein.

Held:

+ While considering an application for bail with reference to Section 37 of the Act, the Court is not called upon to record a finding of 'not guilty' - At this stage, it is neither necessary nor desirable to weigh the evidence meticulously to arrive at a positive finding as to whether or not the accused has committed the offence alleged against him - What is to be seen is whether there is reasonable ground for believing that the accused is not guilty of the offence he is charged with and further that he is not likely to commit an offence under the Act while on bail - The satisfaction of the Court about the existence of the said twin conditions is for a limited purpose and is confined to the question of releasing the accused on bail - A bare perusal of the above reasons stated by the Sessions Judge for granting bail to the second accused would show that the Sessions Judge has not adverted to the conditions mentioned under Section 37(1)(b) of the Act and that he has not recorded any satisfaction with regard to those conditions - It is also not possible to infer from the order passed by the Sessions Judge that he was satisfied about the twin conditions mentioned under Section 37(1)(b) of the Act - As stated by the Apex Court in Rattan Mallik - 2009-TIOL-13-SC-NDPS , the observation "nothing has been found from his possession" in the impugned order granting bail is not sufficient to infer that the Sessions Judge had applied his mind to the provisions contained in Section 37(1)(b) of the Act - Additional Sessions Judge should have noticed that 1602 grams of hashish had been seized from the possession of the first accused - In fact, what is stated by the Additional Sessions Judge in the impugned order is that only 1.602 grams (not 1602 grams) of hashish was seized - This would show that the Additional Sessions Judge had not applied his mind while granting statutory bail to the petitioner - The Sessions Judge had not considered whether the quantity of the narcotic substance seized from the possession of the first accused constituted commercial quantity irrespective of the penal provision mentioned by the investigating officer in the records – Bench has no hesitation to hold that the order passed by the Additional Sessions Judge granting statutory bail to the first accused, without considering the provisions contained in Section 36A(4) of the Act, was illegal - inspite of the illegality committed by the learned Additional Sessions Judge in granting statutory bail to the first accused, at this distant point of time, Bench is not inclined to cancel the bail granted to the first accused, especially in the absence of any material produced by the petitioner to show that complaint was filed within a period of 180 days from the date of arrest of the first accused: High Court [para 17, 18, 22, 43, 44, 46]

+ In respect of accused 2 and 4 to 6, the statements given by each of them and the co-accused under Section 67 of the Act constitute almost the entire basis of the prosecution case against them - The questions, whether an officer investigating the matter under the Act would qualify as a police officer or not and whether the statement recorded under Section 67 of the Act would be admissible in evidence or not, have been referred to consideration by a larger Bench of the Supreme Court in Tofan Singh v. State of Tamil Nadu : - 2013-TIOL-51-SC-NDPS - Till the decision of the larger bench of the Apex Court comes, it has to be found that the statement of a person under Section 67 of the Act is admissible in evidence - Yet, confession of a co-accused is a very weak type of evidence - Without any other material to corroborate the statements of the accused and the co-accused recorded under Section 67 of the Act, it may not be possible to find an accused guilty of an offence under the Act (See Mohammed Fasrin v. State - 2019-TIOL-417-SC-NDPS - Therefore, there are reasonable grounds for believing that the accused 2 and 4 to 6 are not guilty of the offences alleged against them - all the petitions are liable to be dismissed: High Court [para 47, 48]

- Petitions dismissed: KERALA HIGH COURT

2020-TIOL-51-HC-KAR-CUS

RSWM Ltd Vs UoI

Cus - Petitioner is in appeal against the order of the Single Judge - Bench does not find any grounds to interfere - During the pendency of the petition, the Single Judge has passed various orders and in pursuant to that, the respondents have also passed orders, which are already a part of the record - Writ petition was filed for a declaration that the petitioner is entitled to duty credit scrip of Rs.1,35,27,742/- vide Annexure 'C' to the writ petition at the rate of 2% of incremental growth in exports during 01.01.2013 to 31.03.2014 - Since, interim orders were passed and subsequent orders have also been passed by the authorities based on such directions, it is necessary that the orders passed by the Authorities require to be challenged by the petitioner before the appropriate forum - It is also just and necessary that the petitioner be granted liberty to challenge those orders since subsequent orders have been passed by the authorities pursuant to filing of the writ petition - The writ petition cannot be considered on the pleadings which were made after filing of the writ petition - writ appeal is disposed off with a liberty to the petitioner to approach the appropriate forum to question the validity of the order dated 09.10.2018 as well as the communication dated 06.11.2018 - time spent by the petitioner before the Court till date shall be taken into consideration while considering the proceedings: High Court [para 4, 5]

- Appeal disposed of: KARNATAKA HIGH COURT

2020-TIOL-49-HC-KAR-CUS

Cus - Refund - Terminal Excise duty - Case of respondent Nos.3 and 4 is that during the period from June 2009 till October 2009, the petitioner M/s Acer India P Ltd. had supplied computer systems to Export Oriented Units on payment of Terminal Excise Duty - The supply of goods to Export Oriented Units is a deemed export in terms of 8.2(b) of Foreign Trade Policy and the supplier is entitled to claim refund of TED from the Regional authority in terms of 8.3(c) of FTP - Accordingly, the petitioner filed an application for refund but the same was rejected - Single Judge came to the conclusion that the petitioner was entitled for a refund claim and accordingly, allowed the writ petition by quashing the communication dated 31.3.2016 - DGFT is aggrieved by this order dated 20.03.2018 and has filed the present appeal.

Held: It is undisputed that the goods supplied to Export Oriented Units at the relevant point of time was entitled for tax refund - Therefore, even though the tax was paid at the time when the goods were exported it did not entitle the respondents to retain the same - Due to various reasons, tax was paid at the time of exporting the goods - appellants DGFT does not dispute the fact that the tax has been wrongly paid - If it is not disputed it cannot be retained - Single Judge has rightly allowed the petition, therefore, writ appeal is dismissed: High Court [para 5]

- Petition dismissed: KARNATAKA HIGH COURT

2020-TIOL-48-HC-P&H-CUS

Cus - Petitioners are seeking quashing of Show Cause Notice(s) of finalization of provisionally assessed Bills of Entry, beyond a period of five years - respondents inter alia contended that Section 18 of the Customs Act, 1962 does not prescribe any limitation period to frame final assessment; the department has not accepted judgment of this Court in case of Gupta Smelters case - 2018-TIOL-2992-HC-P&H-CUS and an appeal has been filed before Supreme Court.

Held: Court in case of Gupta Smelters (supra) has held that final assessment under Section 18 of Customs Act, 1962 cannot be made after the expiry of five years from the date of bill of entry - Admittedly, in the present case Bills of Entry were filed 7-8 years back from the date of impugned notice(s) and neither there was any petition of petitioners pending before Competent Court nor was there any stay of any court, thus there was no reason to withhold framing of final assessment - The respondent-Department is deflecting from its responsibility by taking plea of one order dated 24.03.2011 passed by Tribunal-CESTAT which nowhere inhibits respondent from framing final assessment of any importer - The respondent-Department has taken this frivolous plea just to conceal their negligence/incompetency and mislead the Court, which cannot be appreciated and, therefore, the said plea is rejected - issue involved in all the present petitions is squarely covered by judgment of this Court in case of Gupta Smelters Pvt. Ltd. - 2018-TIOL-2992-HC-P&H-CUS - impugned notices for framing final assessment of provisional assessment are quashed in all the cases - Petitions allowed: High Court [para 6, 7]

- Petitions allowed: PUNJAB AND HARYANA HIGH COURT

2020-TIOL-47-HC-P&H-CUS

CC Vs Krishna Cargo Movers Pvt Ltd

Cus - The present appeal assailed an order passed by the CESTAT, raising several issues, namely as to whether the Instructions/Circulars of the Ministry laying down the rate and manner of payment of cost recovery charges issued prior to coming into effect of HCCAR, 2009 are inapplicable after the coming into effect of HCCAR, 2009 - Another issue was whether the Tribunal rightly held that cost recovery charges could not be collected after enactment of the HCCAR 2009 as Instructions issued prior to it are inapplicable yet holding that CFS had achieved benchmark performance for exemption from payment of CRC based on one such Instruction - Another issue was whether the Tribunal justifiably held that waiver is applicable even when no specific order for waiver of CRC has been issued by the competent authority as required under CBEC's Circular No. 13/2009-Cus dated 23.03.2009 read with Ministry's letter dated 12.09.2005.

Held - The conceded position that emerges from record is that the respondent-assessee got approval and established its CFS and achived benchmark in terms of clearance of minimum containers, filing of bill of entry and continued its operations for two consecutive years - The respondent did not pay cost recovery charges and the Revenue issued notice raising duty demand - The assessee deposited the charges prior to the demand notice - The instruction relied on by the Revenue nowhere required filing of an application by the CFS - The instructions further direct that no charges should be pending on 31.08.2005 - Instructions dated 23.03.2009 require that CFS should be in existence for two consecutive years and achieve norms in terms of number of import or export containers - The CFS is required to pay the cost recovery charges at rate and manner specified by the Ministry - As no manner or rate has been prescribed under the regulation or any other way subsequent to the regulation, in that circumstance, no cost recovery charges can be demanded from the Revenue - Moreover, it is seen that the Tribunal is the final fact finding authority - The high court in exercise of powers u/s 130 of the Customs Act is not empowered to re-appreciate evidence already considered by the Tribunal - The high court can interfere only where the appreciation of evidence by the Tribunal is perverse to the extent that no reasonable man conversant with law would arrive at such conclusion - It is seen that the respondent-assessee achieved benchmark performance and instructions of 2005 & 2009 do not require filing of application by CFS seeking waiver of cost recovery charges - It is not the case of the Revenue that any dues were pending before the - It is seen that prior to 2009 only instructions were holding the field and Respondent-CFS cannot be asked to pay cost recovery charges when it had already achieved benchmark performance which is the paramount requirement - The respondent did not claim exemption for the period 2008-2010, thus there is no reason to charge cost of officers when benchmark performance is achieved - Hence the findings of the Tribunal do not warrant any interference with: HC

- Revenue's appeal disposed of: PUNJAB AND HARYANA HIGH COURT

2020-TIOL-46-CESTAT-MUM

Ambitious Marketing Vs CC

Cus - The assessee have imported "O General" window/split Airconditioners in assembled condition and filed a Bill of Entry and declared assessable value - The department did not accept the declared assessable value and has enhanced the value - The Dy. Commissioner has re-determined the assessable value under Rule 8 of CVR, 1988 which was confirmed by Commissioner (A) - The case appears to have been built upon imports made somewhere in 2003 by another importer M/s. Vaz Enterprises who have imported component parts of the same brand of Air conditioner, whereas the present imports are in 2005; it is also not made out as to how the said imports of M/s. Vaz Enterprises are comparable with the impugned import in 2005; except mentioning that the goods are of the same brand nothing more is forthcoming from the OIA and OIO - This cannot be a reason for rejecting the transaction value declared by assessee as no comparable parameters like supplier, importer, quantity, quality time of import are matching - Issuing 2 notices in too short a time may suffice the requirements of law in letter but the spirit of same defeated - The action of the lower authority is not at all sustainable under law - Moreover, on merits also the case does not stand on even one leg - Firstly, no reasons were recorded for rejecting the declared value; Secondly, the valuation rules have not been pursued in sequential manner in terms of Rule 4 of CVR 1988; thirdly no reasons for adopting the value of import which occurred a couple of years ago and lastly difference of additional duty payable was arrived at without rejecting the declared RSP - Nothing survives and nothing is sustainable in the case - Accordingly, the impugned order is set aside: CESTAT

- Appeal allowed: MUMBAI CESTAT

TP - ALP adjustment proposed by TPO by relying on evidences which were not put to notice of taxpayer, calls for re-adjudication: HC

TP - Functionally dissimilar companies having huge differences on account of export & service revenue filter, cannot be considered as comparable: ITAT

I-T - Receipts by foreign firm from sale of embedded software is not taxable as royalty in India, if dominant character and essence of transaction is sale of machine: ITAT

I-T - Service tax is liable to be included in gross receipt in terms of Section 44BB(1) r/w/s 44BB(2) for purpose of depositing presumptive tax: ITAT

CORPLAWS

Contract Act: One of parties to contract has performed his part of commitment, same is entitled for recovery of amount due proportionate to work performed and/or loss suffered: HC

Companies Act - Indicating mistake of Registrar of Companies in following proper provisions of Act in TATA-Mistry case does not amount to aspersions: NCLAT

IBC - In considering application u/s 7 or 9, NCLT is not constrained to look into reasons of Corporate Debtor's default & treat insolvency process as substitute for debt enforcement procedure: NCLAT

SEBI - Failure to make effort by AO to discover address of person alleged to be involved in synchronized trading makes ex parte penalty order imposed under PFUTP Regulations in violation of PNJ & unsustainable: SAT