Whether addition u/s 68 can be made when identity of investor, creditworthiness of investors and genuineness of transactions are duly proved by the assessee through evidences - NO : ITAT

- Assessee's appeal partly allowed: MUMBAI ITAT

Kaushik Mukherjee Vs ACIT

Whether penalty order passed by the AO is liable to be cancelled if SCN issued by the AO u/s 274 for the year under consideration was not in accordance with law - YES : ITAT

Whether show cause notice issued u/s 274 is defective if it does not spell out the grounds on which the penalty is sought to be imposed - YES : ITAT

- Assessee's appeal allowed: KOLKATA ITAT

Subodh Ramanlal Desai Vs DCIT

Whether claim of depreciation u/s 32 is to be allowed on the basis of copies of ledger proving that vehicle was put under use - YES : ITAT

Whether if there is short payment of tax due to difference of opinion as to taxability of any item of nature of payments attracting TDS, an assessee can at most be declared as assessee in default u/s 201 - YES: ITAT

Whether in such circumstances, any disallowance can be made u/s 40(a)(ia) - NO: ITAT

- Assessee's appeal allowed: AHMEDABAD ITAT

Sudha Agro Oil And Chemical Industries Ltd Vs ADDL CIT

Whether penalty can be imposed u/s 271E simply because loan taken by the assessee is repaid to the creditors by means of demand draft & where details of such drafts are recorded in the books of accounts - NO: ITAT

- Assessee's appeal allowed: VISAKHAPATNAM ITAT

Visakhapatnam Metropolitan Region Development Authority Vs CCIT

Whether without evidences it can be assumed that after selling lands, the assessee has remitted sale proceeds to Government account - NO: ITAT

Whether assisting Government, in sale of lands, after collecting expenses does not make assessee disentitle for registration u/s 12AA(3) - YES: ITAT

- Assessee's appeal allowed: VISAKHAPATNAM ITAT

ST - Irregular availment of CENVAT credit - It is the case of the appellant that the Cenvat Credit availed on input services used for providing exempted output service is an inadvertent mistake and as soon as the same was pointed out by the CERA Audit, the entire amount along with interest was paid on 19/08/2011 before issuance of SCN; that, therefore, there was no occasion for issuance of Show Cause Notice and there was no contumacious conduct on the part of the appellant assessee; that penalties u/r 15 of CCR r/w s.78 is not imposable.

Held: There is no ingredient of misstatement or suppression of facts with an intent to evade payment of tax - since, after being pointed out by the CERA Audit, the appellant went through its records and finally did not dispute and paid the entire amount of tax along with applicable interest before issuance of the Show Cause Notice, penalty is not imposable - same is set aside and appeal is allowed with consequential benefits: CESTAT [para 4, 5]

- Appeal allowed: KOLKATA CESTAT

 

CX - Entire case of the department is based upon the computer printouts taken from the computer hard disk, from the premises of the appellant, at the time of search - On careful perusal of the Panchnama dated 04.07.2014 (RUD-15) drawn at the Room No. 113, Computer Cell of Central Excise, Hqrs, Raipur, Bench finds that the officers have taken the printout (on the basis of which, Central Excise Duty of Rs.3,03,41,494/- for the period April, 2011 to Nov, 2013 has been demanded) from the one time writable DVD (after copying), however, the said DVD has been written from Hard Disk No. 2 on 03.07.2014 - However, the Panchnama dated 03.07.2014 has not been relied upon in the show cause notice and neither the appellant nor his authorised representative was present on 03.07.2014, when the data from the Hard Disk No. 2 was retrieved on DVD - It is clear that the said Hard Disk could have been tampered, therefore, cannot be relied upon as evidence inasmuch the said data has been retrieved without ensuring the presence of the appellants - Bench further finds that no certificate has been produced by the department as envisaged under Section 36B of the CEA, 1944, which provides the conditions to be fulfilled in order to admit the said documents in evidence - Computer printouts relied upon by the revenue are, therefore, not admissible in evidence - As far as statements recorded under Section 14 of the CEA, which have been relied upon by the revenue, the Commissioner had denied the cross-examination of witnesses, therefore, in view of the decision of Andaman Timber Industries - 2015-TIOL-255-SC-CX and Kurele Pan Products Pvt. Ltd. - 2014-TIOL-690-HC-ALL-CX , said statements cannot be relied upon as evidence - there is no corroborative evidence adduced by the department in order to allege huge production and removal of goods - department is required to adduce clinching evidence of the nature of purchase of raw material, use of electricity, sale of final products, payment, realization of sale proceeds, mode and flow back of funds - as the appellant has not contested the demand of Central Excise Duty Rs. 2,81,953/- on allegation of shortages of finished goods and raw materials, the same is confirmed, however, demand of Rs. 3,03,41,494/- along with interest and penalty for the period April, 2011 to Nov. 2013, on allegation of suppression of production and clandestine removal of Sponge Iron, is set aside as there is no reliable evidence adduced by the department in order to prove clandestine production and removal of goods - penalty on Director is also set aside - Appeals allowed as above: CESTAT [para 5, 6, 7, 9, 11, 12, 13]

- Appeals allowed: DELHI CESTAT

Cubex Tubings Ltd Vs CC, CE & ST

CX - CENVAT - Assertion of the Department that M/s Sree Enterprises could not have manufactured the goods and, therefore, by implication have not supplied the goods, cannot form the basis to deny the appellant CENVAT Credit - At any rate, the present dispute is regarding entitlement of the CENVAT Credit by the appellant - As a recipient of the goods and CENVAT invoices, the appellant is not required to investigate the operations of their supplier to assess whether or not they had the capacity to manufacture the goods, whether or not they had procured sufficient raw material during the period and whether or not they consumed sufficient power to justify manufacture of the goods - CENVAT Credit can be denied if it is proved that the appellant has not received the goods - All accounts of the appellant and the supplier show that they have received the goods, used them and have paid the supplier by account payee cheques - Under these circumstances, Bench does not find sufficient evidence to deny the appellant CENVAT Credit on the invoice issued by M/s Sree Enterprises: CESTAT [para 21(i), 22]

CX - CENVAT - Only evidence against the appellant is the statement of Shri R.S. Elanjeran, Proprietor of M/s Swastik Insulators, on 31.03.2008 and the fact that one of the truck numbers on which the goods were supposed to have been received was indeed a motor cycle - It was perfectly possible that there was a typographical error in mentioning the vehicle number - As the Department had committed an error in not verifying the vehicle No. AP 07 TF 9777, but had instead verified the vehicle No. AP 07 TT 9777, it is an equally possible human failure that the person preparing the documents might have also erred in mentioning the vehicle number - credit cannot be denied: CESTAT [para 21(iii), 22]

- Appeals allowed: HYDERABAD CESTAT

 

Cus - Smuggling of Pharmaceutical Bulk Drugs (PBD) - This is not a case of legal import of goods - The question of duty does not arise when goods are confiscated absolutely - Only when the goods are allowed to be redeemed, such goods shall be cleared on payment of duty in addition to the fine in lieu of confiscation: CESTAT [para 22]

Cus - Word 'abets' should be read in conjunction with act/omission necessarily under the Customs, Act, 1962 - The allegation of abetting, if any, is in relation to the sale and purchase of bulk drugs in the course of trade within India - The whole allegation is that the appellants have issued invoices without receiving or sending goods physically - In that case, they cannot be alleged to have dealt with goods within the meaning of Section 112(b) of the Customs, Act 1962, more so when the knowledge of the goods being smuggled is absent - If the appellants have committed any offence under Drugs and Cosmetics, Act, 1940 the agencies concerned would take necessary action - Therefore, penalty is not imposable either on Shri Parag Bhavasar or on M/s Palam Pharma either under Section 112 (a) or under Section 112(b) of the Customs, Act, 1962: CESTAT [para 24]

Cus - Appellants have purchased the drugs in the course of their business and have recorded the transactions - They have given all the relevant details asked by the investigation - They have even deposited the sums payable to M/s Palam Pharma (or Shri Bavishi) with the investigation and have thus proved their bona fides - There is nothing on record to show that they had knowledge that the goods were smuggled - Therefore, Bench finds that they have not committed any act in violation of Customs Act, 1962 - Moreover, being companies, penalties under Section 112(b) cannot be levied: CESTAT [para 25]

Cus - Penalty on M/s Reliable Agency - There were no reasons for the Appellants to harbor any belief that Mr. Bavishi is dealing in the goods imported illegally - allegation against the appellants is that they have issued the invoices at the behest of one Mr. Bhavishi without actually receiving or selling any goods - Appellants never dealt with the impugned goods in any manner whatsoever; goods were directly sent to M/s. Palam Pharma by Mr. Bavishi and the Appellants had no role to play in actual delivery; as accepted in SCN - there were no reasons for the Appellants to harbor any belief that Mr. Bavishi is dealing in the goods imported illegally - this does not constitute any omission or commission under the Customs, Act 1962: CESTAT [para 26]

- Appeals disposed of: MUMBAI CESTAT