2020-TIOL-NEWS-048, Dated: Wednesday, February 26, 2020

2020-TIOL-NEWS-048| Wednesday February 26, 2020

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


	2020-TIOL-447-HC-P&H-IT PR CIT Vs TDS Management Consultant Pvt Ltd On hearing the matter the High Court dismissed the application of the revenue as no substantial question of law arose from it. - Revenue's appeal dismissed: PUNJAB AND HARYANA HIGH COURT 2020-TIOL-294-ITAT-MUM ITO Vs Mechan Resorts Llp Whether where the CIT(A) finds that the assessee has discharged the onus cast upon u/s 68, no addition on account of unexplained cash credit is warranted - YES: ITAT - Revenue's appeal dismissed: MUMBAI ITAT 2020-TIOL-293-ITAT-DEL Indian Geotechnical Services Vs ACIT Whether onus of proving that certain expenses were incurred primarily for purposes of business, rests with the assessee - YES: ITAT - Assessee's appeal dismissed: DELHI ITAT 2020-TIOL-292-ITAT-BANG Shimoga District Co-Operative Central Bank Ltd Vs ACIT Whether where interest income is accounted for in the succeeding years on receipt basis, the same can be construed to be concealment of income, so as to justify imposition of penalty u/s 271(1)(c) - NO: ITAT - Assessee's appeal allowed: BANGALORE ITAT 2020-TIOL-291-ITAT-PUNE Sudhakar Motiram Kadam Vs ITO Whether admission made by the assessee in respect of certain facts can be challenged before the appellate authorities without bringing forth any contrary evidence - NO: ITAT - Assessee's appeal partly allowed: PUNE ITAT

INDIRECT TAX

SERVICE TAX

2020-TIOL-354-CESTAT-BANG

Aarms Value Chain Pvt Ltd Vs CCT

ST - Whether the period of limitation is applicable for demanding interest or not?

Held: Demand is made for the period April 2011 to March 2016 by issue of a letter of demand dated 24/08/2017 - The Tribunal has dealt with this issue of limitation in various decisions relied upon by the appellant and it has been consistently held that to demand interest, period of limitation is applicable - so also, confirmation of demand of interest without issuing the show-cause notice is not sustainable in law - in cases where duty has been paid belatedly much before the audit was conducted and interest has not been paid, and no demand of tax is made, interest needs to be demanded and recovered following the due process of demand and adjudication - impugned order is not sustainable, hence set aside: CESTAT [para 6.1, 7]

- Appeal allowed: BANGALORE ITAT

CENTRAL EXCISE

2020-TIOL-450-HC-MAD-CX

Hwashin Automative India Pvt Ltd Vs Dy.CCE

CX - Rule 4(5)(a)(iii) of CCR, 2004 is clear and it permits the Assessee to credit the CENVAT account book, if the goods are received back after 180 days - Therefore, in the face of a clear Rule permitting the said adjustment entry, merely because the Assessee made a refund claim in prescribed Form-R under Rule 173, his claim of adjustment entry could not be refused by the authorities below - Merely because the Assessee laid its claim of refund by his moving an application in prescribed Form No.R under Rule 173, being a procedural requirement of the law, the substantive right of Assessee cannot be defeated by the Revenue authorities except at the peril of violating Article 265 of the Constitution of India - appeal allowed with consequential relief: High Court [para 14 to 16]

- Appeal allowed: MADRAS HIGH COURT

2020-TIOL-353-CESTAT-MUM

Ved Pmc Ltd Vs CCE

CX - Notfn. 10/2006-CE - Benefit of reduced rate of duty was denied on the ground that paver blocks are different from building blocks - demand of differential duty confirmed along with imposition of penalty on company and its AGM - as order upheld by Commissioner(A), assessee is in appeal before CESTAT.

Held: A close scrutiny of Notification No. 10/2006-CE, would reveal that all goods covered under Chapter Heading 68 except Heading 6804, 6805, 6811, 6812, 6813 are covered in the said notification for concessional rate of duty @ 8% and not 16% - Therefore, even if it is accepted that appellant had classified the same under CH 6810 1990 and put the same in "Others" category, still the same is covered under Notification No. 10/2006-CE for reduced rate of duty and comparison of the same with solid and hollow building blocks by the Commissioner (Appeals) in denying such concessional rate of duty appears to be irregular - Impugned order set aside and appeals allowed: CESTAT [para 5, 6]

CX - Limitation - Appellant company has placed on record letter dated 01.04.2007 that on the advise of its Chartered Accountant, they have reduced payment of Excise duty from 16% to 8% - on the ground that the letter was replied by the respondent-department with a negative note, same cannot be said to be in conformity to the statutory provisions for invocation of extended period - demand hit by limitation - Appeals allowed: CESTAT [para 5, 6]

- Appeals allowed: MUMBAI CESTAT

CUSTOMS

2020-TIOL-452-HC-MAD-CUS

Sri Steels Vs CC

Cus - CESTAT has dismissed the COD application/appeal filed by the appellant on the ground that there has been a delay of about 4½ years in filing the appeal - aggrieved, appeal is filed before the High Court.

Held: Tribunal only got satisfied with the fact that the Order-In-Appeal was sent to the Assessee through Speed Post and has dismissed the Application for Condonation of dalay, without verifying the fact that the Order-In-Appeal has been received by the Assessee or not - Mere despatching of order does not imply the receipt of the same - If the Assessee would have received the order, it could have filed the Appeal in time - Tribunal was not justified in dismissing the Application on the ground of limitation - Time and again, the higher Constitutional Courts have directed the fact finding Tribunals below not to be trigger-happy to dispose of the cases for default of appearance or on mere delay - Tribunals being the fact finding body is under a legal obligation to decide the Appeal on merits even upon hearing one of the sides and they cannot dismiss the appeals for such aforesaid reasons - Their duty to decide the case on merits is not removed for want of assistance from the side of parties before them - Order set aside and matter remanded to the Tribunal for deciding the appeal afresh - Civil Miscellaneous appeal is allowed: High Court [para 3 to 5]

-Matter remanded: MADRAS HIGH COURT

2020-TIOL-451-HC-MAD-CUS

Sunchan Trading Company Vs CC

Cus - Sale price of the consignment attributable to the appellant is Rs.14,21,384/- and that was realised by Revenue - Deducting the duty element, appellant is entitled to get an amount of Rs.10,72,624/- is what was held by Tribunal - Petition has been filed praying for a direction to the second respondent to pay interest on the sale proceeds of the auction conducted on various dates and which has been directed to be paid back to the petitioner by the CESTAT vide its order dated 13.01.2016.

Held: Plain and simple fact of the case is that respondents have refused to pay the balance amount of the sale proceeds from the auction after due adjustment and appropriation even after Section 150 of the Customs Act, 1962 was amended in 2011 - They have made the petitioner run from pillar to post - In the process, the petitioner has been put in a tiresome litigation for over a period of two decades to recover the amounts which has been wrongly withheld by the respondents - Since the respondents failed to act fairly, Bench is inclined to award the interest to the petitioner on account of the delay - By paying just interest to the petitioner, the respondents would not be paying any amount out of their pocket - Indeed they would be paying interest on the amount, which was wrongly retained in their accounts and earned bank interest which would have legitimately accrued to the petitioner - If the amount was paid to the petitioner then and there, the petitioner would have either earned interest on the amount or utilised the amount for his business - There has to be restitution of interest, which the petitioner would have earned if there was timely payment - The petitioner deserves to be compensated - balance of the sale proceeds which has been withheld by the respondent without the authority of law, is not a duty and therefore, the provisions of Section 27 and 27 A of the Customs Act, 1962 cannot be straight away applied for awarding interest - Moreover, the Central Government has rationalised the rate of interest - Such payment of interest at such rationalised rate would not result in any loss to the Government as it has always been below the bank interest payable for fixed deposit - Since the petitioner is entitled for compensation, Bench is inclined to order payment of interest on the same principle by applying the rate of interest prescribed under notification issued under Section 27A of the Customs Act, 1962 prescribed for the purpose of refund of customs duty under Section 27 of the said Act - second respondent shall calculate the aforesaid amount within a period of three months: High Court [para 18, 19, 20, 21]

-Petition allowed: MADRAS HIGH COURT

2020-TIOL-352-CESTAT-DEL

Marina Enterprises Vs CC, CE & CGST

Cus - During the relevant period, the assessee filed a claim for refund of CVD as per Notfn No 102/2007-Cus - The refund was sanctioned vide the adjudication order - Subsequently, the Revenue noticed that the CA's certificate as furnished by the assessee at the time of seeking refund, was forged and fictitious - SCN was issued proposing to recover the refund amount sanctioned, along with interest and appropriate penalties - Such demands for recovery were confirmed upon adjudication - Appeal against such order was rejected on account of statutory non-compliance on part of the assessee - Hence the present appeal.

Held: It is seen that the Commr.(A) did not pass order on the merits of the case - The appeal was dismissed for non-compliance with the statutory mandate of Section 129E of the Customs Act - The fact of the assessee's account having been attached by the DRI was brought to the notice of the Commr.(A) - A request made by the assessee seeking release of such account, was also acknowledged by the Commr.(A) - The O-i-A is silent upon such request - The Commr.(A) dismissed the appeal solely for want of mandatory pre-deposit of 7.5% of the duty demanded - Such silence on part of the Commr.(A) is not reasonable - Hence in light of such facts and circumstances, the matter is remanded to the Commr.(A) for disposal on merits: CESTAT

- Case remanded: DELHI CESTAT

NEWS FLASH

India, Australia agree to resume FTA talks

India-USA FTA - May be by year-end, says Trump while rueing about India's high tariff regime

JEST GST

By Vijay Kumar

Penny wise

THE title of my last week's column was, "Not a penny more" . Now I find the Central Tax Department very pennywise. Since the Board Member exhorted the field officers to collect that 46,000 crores as interest ...