2020-TIOL-124-HC-ORISSA-IT

Board Of Secondary Education Vs CCIT

Whether exemption certificate is necessary for Board, which is established for imparting secondary education in State to claim exemption u/s 10(23C) (iiiab) - NO : HC

- Assessee's writ petition allowed: ORISSA HIGH COURT

2020-TIOL-123-HC-MP-IT

Chawla Estate Developers Pvt Ltd Vs Income Tax Department

Whether in respect of re-assessment proceedings, reasons to believe are equatable with reasons to suspect - NO: HC

Whether therefore, re-opening of assessment is unsustainable reasons for such exercise are not disclosed to the assessee & rather are based on change of opinion & if no suppression is attributed to the assessee - NO: HC

- Assessee's writ petition allowed: MADHYA PRADESH HIGH COURT

2020-TIOL-122-HC-MAD-IT

CIT Vs Estate Of Late Balu Bai Dadha

Whether no appeals shall not be filed/pursued by the Department before the Writ Court in cases where the tax effect does not exceed the monetary limit imposed by CBDT - YES: HC

- Revenue's appeal dismissed: MADRAS HIGH COURT

2020-TIOL-121-HC-ALL-IT

Tara Mishra Vs CIT

Whether review is permitted in the absence of any error apparent on face of record - NO: HC

- Assessee's review application dismissed: ALLAHABAD HIGH COURT

2020-TIOL-120-HC-AHM-IT

PR CIT Vs Torrent Pharmaceuticals Ltd

Whether expenditure incurred for the purpose of scientific research merits acceptance if seperate books were maintained in respect of same at end of every year and get audited - YES: HC

Whether cash discount received from vendors on account of purchase, merits deduction u/s 80IC - YES: HC

- Case deferred: GUJARAT HIGH COURT

2020-TIOL-129-CESTAT-MUM

Indian Pharmaceutical Association Vs CCGST & CE

ST - Club or Association Service/Convention Service - Service Tax demand notices for the period 2006-07 to 2009-10 and 2010-11 were issued to M/s Indian Pharmaceutical Association on the receipts from members - demands were confirmed along with penalty and interest and, therefore, appellant is before the CESTAT - Appellant submits that they are a national professional body of qualified pharmacists and tax under section 65 (105) (zzze) of Finance Act 1994 is not leviable from them, a registered charitable organisation; that retrospective exemption for the period from 16th June 2005 and 31st March 2008 was provided by section 96 of Finance Act, 1994, and that the decision in Ranchi Club - 2012-TIOL-1031-HC-JHARKHAND-ST and in Sports Club of Gujarat Ltd - 2013-TIOL-528-HC-AHM-ST settles the issue in their favour.

Held: In view of the cases cited, demand in relation to tax as provider of 'club or association service' fails - insofar as tax demand under ‘Convention Service', it is observed that the appellant does not offer 'convention services' but gets events organised by professionals and, by collecting fees which are transmitted to such organisers, enables its members to participate in them - There is no allegation that any part of the fees charged by convention organisers is retained by the appellant, thus, the activity is beyond the purview of taxability under section 65 (105) (zc) of Finance Act, 1994 - Impugned order is set aside and appeal is allowed: CESTAT [para 4 to 6]

- Appeal allowed: MUMBAI CESTAT

2020-TIOL-128-CESTAT-DEL

Caparo Engineering India Ltd Vs CCGST, C & CE

CX - The assessee-company is engaged in manufacture of parts and accessories of motor vehicles - It also undertakes job work under the CEA 1944 - During the relevant period, the Department observed that the assessee was availing exemption as per Notfn No 214/1986-CE for job work on blank supplied by another entity - It was also observed that the assessee was also realising job charges separately for activity of forming of blank - The assessee also cleared the processed blank to its supplier manufacturer without payment of duty - The assessee also availed cenvat credit of duty paid on paints used for job work activities - The Revenue claimed that the assessee was not paying Excise duty for the job work and thus illegally availed the credit of duty paid on paints used for job work activities as the cost of the paints was separately mentioned in the invoice - SCN was issued proposing reversal of credit so availed - On adjudication, such proposals were confirmed - Such findings were later sustained by the Commr.(A) - Hence the present appeal.

Held - The issue at hand is whether the assessee is entitled to avail the Cenvat Credit on the paints used by it while doing the job work, under Notifications No. 214/81, when the cost of paints have been separately shown in the invoices and not recovered from the manufacturer - Such issue is no longer res integra - The larger bench of the Tribunal in M/s Sterlite Industrial held that Modvat credit of duty paid on the inputs used in the manufacture of final product cleared without payment of duty for further utilisation in the manufacture of final product, which are cleared on payment of duty by the principal manufacturer, would not be hit by provision of Rule 57C - Moreover, in MPI Papers Pvt. Ltd., Vs. Commissioner of Central Excise, Mumbai-I it was held that under the circular of the Board as well as scheme or the Rules, cenvat credit is permissible to a job worker or even to a manufacturer at intermediate stage in respect of inputs like lubricants, soaps, chemical - On final products, duty is admittedly paid - Object of Cenvat credit is to avoid cascading effect of duty - Hence the O-i-A is unsustainable & is liable to be quashed: CESTAT

- Assessee's appeal allowed: DELHI CESTAT

2020-TIOL-127-CESTAT-KOL

ASL Builders Pvt Ltd Vs CCGST & CE

CX - The assessee-company is engaged in the business of construction of residential flats, commercial and industrial construction services - It entered into a transaction for sale of a flat, in favor of two persons - The occupancy certificate was issued before the sale of property - The transaction was completed in due course with the first sale consideration received by the assessee vide cheque - The assessee however received only the payment towards sale value of the property excluding the service tax thereof - The assessee discharged the full purported service tax liability - The assessee later came to know that the transaction of sale of the subject property was an outright transfer of title in immovable property and so not leviable to service tax - The assessee found that it had paid duty under mistake of law without there being any statutory basis for charging the same - Refund claim was filed in respect of such service tax paid under mistake of law - SCN was issued proposing to reject the refund on grounds that the same was hit by limitation u/s 11B of the CEA and also by the principle of unjust enrichment - On adjudication, O-i-O was passed rejecting the refund claim - On appeal, the Commr.(A) sustained such findings - Hence the present appeal.

Held: It is to be seen as to whether the amount paid by the assessee under a mistaken notion was payable or not - If the assessee had not paid those amounts, the authority could not have demanded from the assessee to make such payment - The Department lacked authority to levy and collect such tax - In case, the Department was to demand such payment, the assessee could have challenged it as unconstitutional and without authority of law - When once there is lack of authority to demand service tax or excise duty from the assessee, the Department lacks authority to levy and collect such amount and the said amount is not "Service Tax" or "Excise duty" and Section 11B of the Act has no application in such cases - The Madras High Court in 3E Infotech vs. CESTAT, Chennai held that if the Revenue is allowed to keep the excess service tax paid, it would not be proper and would run against the tenets of Article 265 of the Constitution of India - In light of the same, the O-i-A in challenge is unsustainable: CESTAT

- Assessee's appeal allowed: KOLKATA CESTAT

2020-TIOL-126-CESTAT-AHM

CC Vs Shree Electrometals Ltd

Cus - The assessee had purchased two consignments of "Coking Coal" from the original importer on High Sea basis and sought clearance of said imported goods against two Bills of entry under CTH 271011910 claiming benefit of Nil rate of BCD under Notfn 21/2002-Cus - The said bills of entry were provisionally assessed on execution of bond for want of original documents, test results and finalization of issue of Coal Cess - Relying on the test results that the samples tested were 'other than coking coal', the bills of entry were finally assessed vide Final Assessment Orders denying the benefit of Notfn 21/2002 and charging 5% BCD as per Sr. No. 70 of the said notification which resulted into the demand of duty and interest under section 18(3) of Customs Act, 1962 - This appeal is against the impugned order which was passed in the second round of appeal before the Commissioner (A) - The Commissioner (A) in the first round of appeal, remanded the matter to the Adjudicating Authority - It is very clear that the Commissioner (A) has clearly held that the parameters in the test report are not conclusive and directed the Adjudicating Authority to get the retest done - In this position, the earlier report become nonest and the same cannot be used again for re-adjudication of the case - The only option left with the Adjudicating Authority was to get the retest done and since it was not possible, the earlier test report could not have been relied upon for passing the de novo adjudication order - Needless to say that the first appellate order dated 27/07/2009 whereby the matter was remanded to the Adjudicating Authority was accepted by Revenue and no appeal was filed against that - As regard the case by Adjudicating Authority, it was observed that the Chemical Examiner in the opinion dated 13/10/2010 stated that "test results of sample in reference shows the CSN less than 3, hence, the goods are other than coking coal" - On perusal of the test report, it is found that only two parameters i.e. total moisture content = 2.5% and Ash content on ADB= 8.9% was given whereas no parameters of CSN was mentioned in the test results - Therefore, the statements made by Chemical Examiner that the test result show the CSN less than 3 is absolutely incorrect - As per the exemption entry, the only content is in respect of coking coal is the Ash Content should be less than 12 - As per the test report itself, there is no dispute that ash content is 8.9% which is less than 12% - Therefore, the goods i.e. imported coking coal purchased by assessee on high sea basis is clearly covered under the entry no. 68 of said Notfn 21/2002-Cus - The entire adjudication order is not sustainable only on the grounds that the same was passed only by relying the earlier test report and the opinion of Chemical Examiner - As the test report after the first appellate order became nonest and the same could not have been relied upon, the Chemical Examiner's report showing the CSN less than 3 is also absolutely without any basis - Therefore, adjudication order passed on wrong footing was correctly set aside by Commissioner (A) - There is absolutely no infirmity in impugned order: CESTAT

- Appeals dismissed: AHMEDABAD CESTAT