2020-TIOL-918-HC-P&H-IT

Maharaja Ranjit Singh War Museum Society Vs CIT

Whether transfer to PSWHMMS is deemed income of Society as amount has been spent for the purpose other than for what it is accumulated - YES : HC

- Assessee's appeal dismissed: PUNJAB AND HARYANA HIGH COURT

2020-TIOL-580-ITAT-PUNE

Trimurti Coal Trading Company Vs DCIT

Whether matter warrants remand where AO is required to investigate the source of cash deposits made to the bank account of the assessee - YES: ITAT

- Case remanded: PUNE ITAT

2020-TIOL-579-ITAT-PUNE

Sameer Vithalrao Ghanwat Vs ITO

Whether power of rectification is to be exercised only when there is an obvious or patent mistake apparent on record & not where the mistake is such as would need to be substatiated through arguments - YES: ITAT

- Assessee's appeal dismissed: PUNE ITAT

2020-TIOL-578-ITAT-PUNE

Shri Samartha Sahakari Bank Ltd Vs ACIT

Whether deduction can be allowed in respect of provisions made for bad or doubtful debts - YES: ITAT

- Assessee's appeal partly allowed: PUNE ITAT

2020-TIOL-577-ITAT-MAD

Indus Mobile Distribution Pvt Ltd Vs ACIT

Whether brand building expenses are akin to business promotion expenses - YES: ITAT

Whether employee's contribution of PF is allowable, if the same is deposited before the filing of return u/s 139(1) - YES: ITAT

Whether depreciation on trade mark rights being intangible assets is allowable and whether in law, presence of an express agreement for the purchase of trade mark is not a condition precedent and hence execution of such agreement on antedated stamp paper would not make any difference – YES: ITAT

- Assessee's appeal allowed: CHENNAI ITAT

2020-TIOL-576-ITAT-AHM

Sanvira Holdings Vs DCIT

Whether addition framed solely on the basis of statement recorded during Survey proceedings u/s 133A are not tenable until and unless substantiated by corroborative evidences – YES : ITAT

Whether Section 133A does not empower any ITO to examine any person on oath; so statement recorded under section 133A has no evidentiary value and any admission made during such statement cannot be made basis of addition - YES : ITAT

- Assessee's appeal partly allowed: AHMEDABAD ITAT

2020-TIOL-575-ITAT-INDORE

Sarwar Mohd Khan Vs ACIT

Whether re-assessment order merits being quashed where it is passed on grounds other than those recorded in the reasons to believe for resorting to such proceedings - YES: ITAT

- Assessee's appeal allowed: INDORE ITAT

Law Weekly Journal

GST - Applicant seeks ruling on the following viz. (a) whether the assessee/dealer which publishes law journals in print and sells the same content that is in books in an electronic form in DVDs/CDs with a software to search and read it on computers and hand held devices come under the category of E-book so that it can avail the benefit of notification 13/2018-CTR dated 26.07.2018 in respect of E-book; (b) whether the liability on the sale of DVD/pen drive which contains printed version of law citations can be adjusted against the available ITC; (c) whether the liability on sale of e-book of printed version of law citation can be adjusted against the available ITC and, (d) whether the balance of ITC after adjustment accrued on the purchase of paper and other materials can be reversed while filing GSTR-9.

Held: Supply of DVD/CD and Dongle loaded with The Law Weekly Desktop Software is an optical media loaded with software and the license to use the software during the subscription period is a supply of service made along with the principal supply of goods in the said Composite supply - DVD/CD & Dongle being ‘Storage devices' containing the software is the principal supply - Such supply of DVD/CD with the loaded ‘The Law Weekly Desktop' Software along with its end user licence by applicant is a supply of goods classifiable under CTH 8523 8020 - As per the Explanation given in the Entry no. 22, clause (i) of notification 11/2017-CTR as amended, ‘e-books' are electronic version of a printed book falling under the Tariff Item 4901 and supplied online which can be read on a computer or a hand held device, while in the case at hand, the contents supplied in the form of DVD/CD is a software which is used to access content containing judgments of various fora, case laws, Acts etc. which provides for searching using a particular case number/period/Act/Court or a combination of the above - the DVD/CDs do not contain electronic versions of the journals but an executable software application and, therefore, do not fall under the Explanation of ‘e-book' given in the said entry - furthermore, in the case at hand, the initial supply of DVD/CD [8523] is supply of goods and hence the notification 11/2017-CTR does not have any application as it relates to supply of services - Supply of DVDs/CDs with ‘The Law Weekly Desktop' software along with end user licence and the supply of access to the online databse on the applicant's website are not eligible to avail the benefit of Entry at Sl. no. 22 of 13/2018-CTR - the other questions are not answered as the same are not in the ambit of Advance Ruling in view of provisions of s.97(2) of the CGST Act, 2017: AAR

- Application disposed of: AAR

2020-TIOL-24-NAA-GST

Director General Of Anti-Profiteering Vs Printing Machine Solutions

GST - Anti-Profiteering - s.171 of the CGST Act, 2017 -  Applicant alleges that they had purchased an imported ‘Used Heidelberg Offset Press SM 74-5 +LX, Mfg. Year 1997 with complete tools and accessories' from respondent for which the respondent had quoted a price of Rs.1,40,00,000 (plus local Sales Tax, if applicable) as per proforma invoice dated 06.05.2027 - however, they were billed for an amount of Rs.1,65,20,000/- as per tax invoice no. 01 dated 29.07.2017 which included GST @18% on Rs.1,40,00,000/- - it is the case of the applicant that after implementation of GST, various existing taxes like VAT, CST, CVD, SAD etc. had been subsumed in GST but the respondent had charged @18% GST on Rs.1,40,00,000/- which was the quoted price inclusive of erstwhile taxes like CVD and SPL CVD etc. and did not pass on the benefit of ITC to him by way of commensurate reduction in price in terms of s.171 of the Act   - finding of DGAP is that the respondent should have reduced the base price to the extent of the CVD that was no longer required to be paid as well as to the extent of the IGST, the credit of which was now available; however, the invoice that was raised on 29.07.2017 for the transaction and on which IGST @18% was charged showed that the base price of the product remained the same i.e. Rs.1,40,00,000/- as per quotation dated 06.05.2017 inasmuch the base price was not reduced to the extent of CVD that was not payable in the post-GST period;  that the respondent would have been liable to pay CVD @12.5% amounting to Rs.5,85,696/- for the above product without getting the benefit of ITC but since the import took place after implementation of GST, the respondent did not have to suffer the burden of the same (of CVD) and hence the base price of the product should have been reduced by Rs.5,85,696/- i.e. the base price should have been Rs.1,34,14,304/-  [Rs.1.4 crores minus Rs.5,85,696/-]; that the commensurate cum-tax price of the product inclusive of GST @18% would have been Rs.1,58,28,879/- and, therefore, the total price to be charged from applicant should have ben Rs.1,58,28,879/- instead of Rs.1.65 crores and the amount of profiteering by the respondent was Rs.6,71,121/- [Rs.1,65 crores minus Rs.1,58,28,879/-] - DGAP in its supplementary report dated 18.12.2019 also clarified that at the time of import of the product and at the time of raising of the subject quote by respondent, the Cesses, namely Education Cess and Secondary & Higher Education Cess were not leviable, hence the said cesses were not considered while calculating profiteering; that on account of typographical error the billing amount was taken as Rs.1,65,00,000/- in place of Rs.1,65,20,000/- and, therefore, the correct profiteered amount would be revised to Rs.6,91,121/- - during the course of hearings before the Authority, the respondent has conveyed his agreement with the report of the DGAP and has also submitted that he has also passed on the profiteered amount of Rs.6,91,121/- to the applicant but without interest vide RTGS dated 12.12.2019 and the applicant acknowledges the same - request of respondent for waiver of interest on the profiteered amount cannot be acceded to in the absence of any provision of law in this regard - respondent directed to compute the interest @18% on the profiteered amount and pay the same to the applicant within a period of three months and compliance report to be submitted by the Commissioner within a period of four months - SCN to be issued for imposition of penalty u/s 171(3A) for contravention of s.171(1) of the Act - in view of 35/2020-CT dated 03.04.2020 issued u/s 168A of the Act,  force majeure ,  the order is being passed on 05.05.2020 which is beyond the period of six months as mandated u/r 133(1): NAA

- Application disposed of: NAA

2020-TIOL-23-NAA-GST

Director General Of Anti-Profittering Vs Azeagaia Development Pvt Ltd

GST - Anti-Profiteering - Section 171 of the CGST Act, 2017 - Applicant alleges profiteering by the respondent in purchase of Flat no. A-802, Azea Botanica, Lucknow inasmuch as it is the contention of the applicant that the respondent had not passed on the benefit of Input Tax Credit by way of commensurate reduction in the prices of the apartment purchased by him on implementation of GST w.e.f 01.07.2017 - DGAP in its report has submitted that the benefit of additional ITC of 3.84% of the turnover had accrued to the respondent for the said project and this benefit was required to be passed on to the recipients but this was not done - investigation revealed that the respondent had realised an additional amount of Rs.56,266/- from applicant no. 1 and Rs.73,05,022/- from the other 166 recipients (who are not applicants but who are identifiable) and, therefore, the balance profiteered amount of Rs.73,61,288/- was required to be returned to the applicant and the other recipients - DGAP has also stated in its report that out of the total profiteered amount of Rs.2,72,21,532/- for the period 01.07.2017 to 31.03.2019, an amount of Rs.2,04,77,678/- was claimed to be passed on by the respondents to the homebuyers by way of reduction in the demand raised on the customers/flat buyers/recipients - Authority finds no reason to differ from the detailed computation of profiteering made by the DGAP and hence the profiteered amount in this case is determined as Rs.2,72,21,532/- - the balance amount of benefit of Rs.73,61,288/- is required to be passed by the respondent to the applicant and the other customers/flat buyers along with interest of @18% in respect of the entire amount of profiteering - balance amount should be paid within three months along with the interest as mentioned - penalty is imposable in terms of s.171(3A) for the contravention of s.171(1) of the Act - SCN to be issued accordingly - provisions of rule 133(1) of the Rules, 2017 requires that the order be passed within 6 months from date of receipt of report furnished by DGAP under rule 129(6) - although the report was received on 25.09.2019 and order was required to be passed on or before 24.03.2020, however, due to prevalent pandemic of COVID-19, order could not be passed before the due date due to force majeure  - order is, therefore, being passed on 05.05.2020 in terms of notification 35/2020-CT dated 03.04.2020 issued by GOI u/s 168A of the CGST Act, 2017: NAA

- Application allowed: NAA

2020-TIOL-22-NAA-GST

Director General Of Anti-Profiteering Vs Samsonite India

GST - Anti-Profiteering - s.171 of the CGST Act, 2017 - Applicant alleges profiteering by respondent in respect of ‘American Tourister Sky Tracer HL Bkue 68cm Hard Trolley' which was being supplied by respondent - Applicant alleges that the respondent did not reduce the selling price of the product when the GST rate was reduced from 28% to 18% w.e.f 15.11.2017 but had kept the MRP of the above product unchanged at Rs.9100/- and thus the benefit of reduction in GST rate was not passed on to the recipients by way of commensurate reduction in its price - Authority agrees with the DGAP conclusion made in its report that the respondent had profiteered by an amount of Rs.25,73,82,482/- as arrived as per the provisions of rule 133(1) of the CGST Rules, 2017 - respondent is, therefore, directed to deposit the profiteered amount along with interest @18% in the Consumer Welfare Funds of the Central and State Governments concerned in the ratio of 50:50 along with interest - amounts to be deposited within three months and report to be submitted by the concerned Commissioners - SCN to be issued for imposition of penalty u/s 171(3A) for contravention of the provisions of s.171(1) of the Act - Order issued on 28.04.2020 keeping in view the force majeure due to COVID-19 pandemic and notification 35/2020-CT dated 03.04.2020: NAA

- Application allowed: NAA

2020-TIOL-21-NAA-GST

Director General Of Anti-Profittering Vs Litecon Industries Pvt Ltd

GST - Anti-Profiteering - s.171 of the CGST Act, 2017 - Applicant alleges profiteering by respondent in respect of Fly Ash Blocks supplied inasmuch as the respondent had not passed on the benefit of reduction of GST rate from 12% to 5% but instead increased the unit base price - DGAP has submitted its report on 25.09.2019 concluding that the respondent has profiteered - NAA observes that it is established that the respondent has acted in contravention of the provisions of s.171 of the Act by not passing on the benefit of reduction in the rate of tax to his recipients by commensurate reduction in the prices - accordingly, the profiteered amount as determined u/r 133(1) of the Rules of Rs.55,60,340/- by DGAP is agreed with - respondent is directed to deposit the profiteered amount along with interest @18% - as apart from the applicant, the rest of the recipients are not identifiable the said amount is to the deposited in the Consumer Welfare Fund of the Central and State governments concerned in the ratio of 50:50 along with interest @18% within three months - applicant has already received his portion of the profiteered amount of Rs.299/- - SCN to be issued for imposition of penalty u/s 171(3A) of the Act - force majeure notification 35/2020-CT dated 03.04.2020 refers for passing order on 13.04.2020 in place of its being required to be passed on 24.03.2020, the six months period mandated under rule 133 - Application allowed: NAA

- Application allowed: NAA

INTERIM ORDER

Cloudtail India Pvt Ltd

GST - Anti-profiteering - Section 171 of the CGST Act, 2017 - Applicant alleges that the respondent had not passed on the benefit of tax reduction from 12% to Nil which was notified vide notification 19/2018-CTR dated 26.07.2018 in respect of supply of Stayfree Sanitary Napkins w.e.f 27.07.2018 - DGAP has in its report stated that the respondent has increased (allegedly due to denial of ITC @12%) the base prices of the Sanitary Napkins when the GST rate was reduced from 12% to Nil w.e.f 27.07.2018; that during the period 27.07.2018 to 31.03.2019 i.e. after reduction of GST rate from 12% to Nil w.e.f 27.07.2018, the amount of profiteering on account of sales made from the closing stock as on 26.07.2018 was Rs.1,43,868/- and amount of profiteering on account of sales made from fresh stock was Rs.18,17,165/-; that the total profiteered amount comes to Rs.19,61,033/- - In the matter of the Written submissions dated 11.11.2019 filed by the respondents, DGAP has submitted that the issue of common ITC could not be addressed in the report dated 24.09.2019; that the authenticity and veracity of the common credit of Rs.13,07,118/- claimed as reversed needs to be verified in terms of s.17(2) of the Act, 2017 r/w rule 42 of the Rules, 2017; that benefit of discounts allowable as per s.15 is to be verified; that the profiteering on closing stock was computed twice since the total sales data excluding the details of closing stock was not provided - Authority notes that the aforementioned three issues are required to be further investigated by the DGAP and only then can the Authority determine the profiteered amount as per s.171 of the Act - Authority, therefore, directs the DGAP to carry out further investigation in terms of rule 133(4) of the Rules and complete the same within three months -  although the report was received on 25.09.2019 and order was required to be passed on or before 24.03.2020, however, due to prevalent pandemic of COVID-19, order could not be passed before the due date due to  force majeure  - order is, therefore, being passed on 20.04.2020 in terms of notification 35/2020-CT dated 03.04.2020 issued by GOI u/s 168A of the CGST Act, 2017: NAA

- Interim order passed

Pivotal Infrastructures Pvt Ltd

GST - Anti-Profiteering - s.171 of the CGST Act, 2017 - Applicant alleges profiteering in respect of purchase of flat in the project of the respondent situated at Gurgaon - inasmuch as the allegation is that the respondent had not passed on the benefit of ITC availed by him by way of commensurate reduction in the price of the above flat - Perusal of the supplementary report dated 19.02.2020 furnished by DGAP and Table-D of his first report dated 16.09.2019 mentions that the respondent has passed on the benefit of Rs.1,21,08,722/- to the flat and shop buyers - however, it is pertinent to note that the DGAP has not verified even a single acknowledgement submitted by the respondent from the flat or the shop buyers to establish that they have actually received the benefit of GST as has been claimed by the respondent - DGAP has also not produced even a single acknowledgement/statement of the buyers obtained/recorded by him to confirm whether the benefit of ITC has been passed on to the buyers or not - in the absence of such acknowledgement/statement, the claim of the respondent that he has passed on the benefit of ITC to his buyers cannot be accepted - DGAP is, therefore, directed to further investigate the present case under rule 133(4) of the Rules up to 29.02.2020 or till the date of issue of Completion Certificate, whichever is earlier, on the following issues viz. whether respondent was eligible to claim ITC on the VAT which he has paid during the period April 2016 to June 2017 as per the Haryana VAT Act, 2003 or not; whether respondent was availing benefit of Composition Scheme under the VAT Act, 2003 or not; whether the respondent was eligible to charge VAT from the flat and shop buyers under the Haryana Affordable Housing Policy, 2013; whether the respondent has collected VAT from the buyers or not; whether the credit of VAT claimed is in accordance with the provisions of s.42 of the VAT Act, 2003; whether ITC claimed during the pre-GST period has been allowed by the appropriate assessing authority and, whether the respondent has actually passed on the benefit of ITC which shall be investigated by verifying acknowledgements produced by respondent - investigation to be completed within a period of three months and a report submitted under rule 129(6) of the Rules; that written acknowledgements of at least 20% of the flat/shop buyers shall be submitted: NAA

Interim Order passed 

SERVICE TAX

2020-TIOL-716-CESTAT-MAD

Suprajit Engineering Ltd Vs CGST & CT

ST - The assessee filed refund claim for an amount of Rs.14,36,000/- on 22.02.2018 claiming refund of the amount which was collected by service provider SIPCOT on development charges - The department was of the view that the refund claimed ought to have been filed within six months from the date on which Section 104 of Finance Act, 2017 was introduced and received assent of the President - Refund claim was dismissed on the ground of limitation - The said issue has been decided by Tribunal in the Final Order dt. 09.07.2019 wherein the Tribunal had held that the rejection of refund claim on the ground of time bar is unjustified - No ground found to take a different view in the present case - The impugned order rejecting the refund claim is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT

CENTRAL EXCISE

2020-TIOL-917-HC-KAR-CX

Suretex Prophylactics India Pvt Ltd Vs CCE, C & ST

CX - Substantial questions of law are - Whether under Rule 5 of CENVAT Credit Rules, 2004 prior to and from 01.04.2012 appellant would be entitled to seek refund without reference to the limitation? Or Whether the time prescribed under Section 11B of the Central Excise Act, 1944 would be applicable for claiming refund of CENVAT Credit?

Held: Central Government in exercise of the power conferred by Rule 5 of Cenvat Credit Rules, has from time to time issued several notifications - Refund of unutilized cenvat credit under Rule 5 of CCR is subject to the notification and clause (6) of the notification dated 14.03.2006 - Clause (6) reads - “ The application in Form A, along with the prescribed enclosures and the relevant extracts of the records maintained under the Central Excise Rules, 2002, CENVAT Credit Rules, 2004, or the Service Tax Rules, 1994 in original, are filed with the Deputy Commissioner of Central Excise or the Assistant Commissioner of Central Excise, as the case may be, before the expiry of the period specified in section 11B of the Central Excise Act, 1944 (1 of 1944)” - clause (6) also finds a place in the subsequent notification dated 18.06.2012 which would clearly indicate that the period specified in Section 11B of the Central Excise Act, 1944 would squarely be attracted in respect of the claims made for refund of Cenvat credit - Apex Court in the case of UNION OF INDIA & OTHERS vs UTTAM STEEL LIMITED = 2015-TIOL-98-SC-CX has held that limitation period under Section 11-B has to be strictly applied and it would not be open to subordinate legislation to dispense with the requirements of Section 11-B - Thus, the irresistible conclusion which has to be necessarily drawn is to the effect that in respect of refund of claims made under Rule 5 of CENVAT Credit Rules, 2004 the provisions of Section 11-B of the Central Excise Act would be squarely applicable - Even in respect of the refund claims made under the CENVAT Credit Rules, 2004 insofar as it relates to "service providers” under the Finance Act, 1994, the provisions of Central Excise Act, 1944 as specified in Section 83 of the Finance Act, 1994 would cover the same inasmuch as, Section 11-B also finds a place in Section 83 of the Finance Act, 1994 - Rule 5 of CENVAT Credit Rules itself clearly specifying that such refund claims would be subject to "such safeguards, conditions and limitations as may be specified, by the Central Government, by notification and the above referred notification No. 5/2006 and 27/2012 clearly specifying in clause (6) and clause 3.0(b) respectively that "before the expiry of the period specified in Section 11-B of the Central Excise Act, 1944 it cannot be gainsaid by the appellants that provisions of Section 11-B of the Central Excise Act is not attracted to the refund claims made under CENVAT Credit Rules, 2004 - Hence, the substantial questions of law formulated in appeals 31/2017, 32/2017, 33/2017 & 25/2018 by holding that refund applications filed under the CENVAT Credit Rules, 2004 cannot be without reference to limitation or time prescribed under Section 11-B of the Central Excise Act, 1944 - substantial question of law formulated in Appeal No.35/2018 at question Nos.1, 3 & 4 to the effect that limitation for claiming refund of unutilized Cenvat credit should be within the period prescribed under Section 11B of Central Excise Act: High Court [para 9 to 12]

CX - Refund - CENVAT - Provisions of Section 11-B of Central Excise Act would be applicable though Section 11-B of the Act does not cover refund of Cenvat credit - notification No. 5/2006 makes it explicitly clear that for the purpose of relevant date for computing one year prescribed under Section 11-B, it has to be determined by applying Rule 5 of Cenvat Credit Rules, 2004, necessarily the refund claims ought to have been filed within one year from the relevant date as specified in Section 11-B - In other words, time limit has to be computed from the last date of the last month of the quarter which would be the relevant date for the purposes of examining if the claim is filed within the limitation prescribed under Section 11-B or otherwise: High Court [para 13]

- Appeals dismissed: KARNATAKA HIGH COURT

2020-TIOL-916-HC-AHM-CX

CCGST & CE Vs Ratnamani Metals And Tubes Ltd

CX - Court had disposed of the Revenue appeals as being not maintainable on the ground that the question involved in the appeal had a direct bearing on the rate of duty and value of goods for the purposes of assessment and hence, in the light of the provisions of section 35G read with section 35L of the Central Excise Act, 1944 - Revenue seeks review of this order.

Held: Applicant has invoked the review jurisdiction of this court on the ground that there is an error apparent on the face of the record - The Supreme Court in Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137 has held that an error apparent on the face of the record must be an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions - It may be pertinent to note that the Revenue counsel has not pointed out any error apparent on the face of the record in the order dated 26.09.2019, the only ground which is urged in the memorandum of application is that the decision of the Supreme Court in M/s Motorola India Ltd ( 2019-TIOL-398-SC-CUS-LB ) could not be shown to the court - Moreover, nothing has been pointed out as to how the order dated 26.09.2019 passed by this court is not in consonance with the above decision - From the contentions put forth by the respondent, it is manifest that the matter would require a long-drawn process of reasoning on a point on which there may conceivably be two opinions - Under the circumstances, it cannot be said that the order dated 26.09.2019 suffers from any error apparent on the face of the record, warranting interference - applications fail and are accordingly, rejected: High Court [para 9 to 11]

- Applications rejected: GUJARAT HIGH COURT

2020-TIOL-715-CESTAT-KOL

Shri Radha Raman Alloys Ltd Vs CCGST & CE

CX - The assessee is a manufacturer of MS ingots and for the manufacture of their final product, they procured raw materials such as pig iron, sponge iron, MS scrap and slag - Period of dispute is from November 2009 to August 2014 - During audit, it was pointed out that Cenvat credit claimed on slag is inadmissible inasmuch as the said input, i.e. 'slag' is absolutely exempted in terms of exemption Notfn 4/2006-CE - It is the case of department that in terms of section 5A(1A), manufacturers are barred to remove absolutely exempted goods on payment of duty and referring to the Board's Circular No. 940/01/2011-CX - Issue is no more res integra in view of the decisions in Hindustan Coca-Cola Beverages Pvt.Ltd. 2013-TIOL-1397-CESTAT-MUM , Neuland Laboratories Ltd. 2013-TIOL-1970-CESTAT-BANG , CEGAT 2005-TIOL-255-HC-MAD-CX and MDS Switchgear Ltd. 2008-TIOL-245-SC-CX - In Neuland Laboratories Ltd. , the Tribunal while dealing with the implication of Board's Circular dated 14.01.2011 held that there is no provision or Rule under CCR, 2004, which puts an obligation on the receiver of goods to ascertain whether duty was payable on the said goods or not by the manufacturer supplier and then avail credit - It was also held that merely on the strength of said Circular dated 14.01.2011 Cenvat Credit cannot be denied, when there is no such provision in CCR, 2004 - The impugned order cannot be sustained and is accordingly set aside: CESTAT

- Appeal allowed: KOLKATA CESTAT

2020-TIOL-714-CESTAT-AHM

Shah Foils Ltd Vs CCE & ST

CX - Issue involved is, whether the appellants are liable for penalty under Rule 26 for the alleged offence that they have issued Cenvatable invoice to various customers without supplying of goods - Since, undisputedly, all the evidences relied upon in the present case were already considered by Tribunal in the case of Shah Foils Ltd. and Sun Textiles Engineering 2019-TIOL-3655-CESTAT-AHM , therefore, there is no need to again deal with all the common evidences such as pen drives and documents recovered - The only issue is related to imposition of penalty under Rule 26 against the appellant on the ground that they have fraudulently passed on the credit without supplying the goods - This Tribunal in the case of Shah Foils Ltd. dealt with the specific issue involved in the present case - From both the decisions, in the case which arose out of same evidence, therefore, in the present case also, the penalty imposed on the appellants will not sustain - Accordingly, the impugned orders only to an extent of imposition of penalty on the appellant under rule 26 are set aside: CESTAT

- Appeals allowed: AHMEDABAD CESTAT

CUSTOMS

2020-TIOL-919-HC-AHM-CUS

Zip Zap Exim Pvt Ltd Vs UoI

Cus - Petitioner is a private limited company and is an approved SEZ unit under the Special Economic Zones Act, 2005 for trading activity, which also includes export of 11 items viz. rechargeable battery for torch and emergency light etc. - A search was conducted by the officers of the DRI at the premises of the petitioner on 08th January, 2018 and various documents and goods were detained/resumed on the allegation of misdeclaration of value - The DRI seized the goods imported by the petitioner on the ground of under valuation of the goods, which were imported by the petitioner being rechargeable battery for torch and emergency light etc. - petitioner by letter dated 09th March 2018 requested the DRI to permit for re export of the goods - Vide communication dated 07th September, 2018, the respondent no.3 insisted for payment of 25% bank guarantee on the amount of IGST leviable on the re-determined value of goods - petitioner, therefore, has approached this Court challenging the communication dated 07th September, 2018.

Held: A coordinate bench of this Court by order dated 04th October, 2018 permitted the petitioner to re-export the goods on filing an undertaking - petitioner submitted that there is no provision for levy of IGST either on the imported goods or the exported goods under the provision of Integrated Goods and Services Tax Act, 2017 and, therefore, the insistence on the part of the respondent no.3 to furnish the bank guarantee of 25% on the amount of IGST is without any basis - Court vide order dated 09th August, 2018 has directed the respondent no.2 to permit the petitioner to re export the goods on furnishing the 25% of the customs duty leviable on re-determined value of goods, then the respondent no.2 is not entitled to ask for bank guarantee on the amount of IGST on redetermined value of goods - petition is allowed - The impugned communication dated 07th September, 2018 is quashed and set aside - It is declared that the petitioner is not liable to furnish the bank guarantee of Rs.15,20,183/- for releasing the goods for re-export, as asked by the respondent no.3 - However, it is clarified that respondent - authority may adjudicate the issue of levy of IGST in the pending proceedings in accordance with law: High Court [para 4 to 8]

- Petition allowed: GUJARAT HIGH COURT

2020-TIOL-713-CESTAT-DEL

Sanjeev Kumar Singh Vs CC

Cus - During the relevant period, specific intelligence was received and an inquiry was launched in respect of a consignment of Synthetic Diamond Powder in respect of which the B/E had been filed - The consignments were said to contain Synthetic Diamond Powder falling under CTH 71051000 - On examination of the B/Es, it was found that the importer declared the contents as 6,25,000 CTS (carats) (625 kg) and 1,25,000 CTS (125 kg) respectively - On examination, it was seen that the importer declared the contents as 1000 carats per Kg - However, it was found that as per the metric standards, one Kg of Diamond powder contains 5000 carats - Hence the valuation of synthetic diamond powder is based on the unit of carats & that by declaring less number of carats, the importer had declared only 1/5th of the quantity and thus undervalued the consignment to the extent of 80% of the quantity declared in the two B/Es - SCN was issued to the importer company & its proprietor - The appellant and its employee were aso made co-noticee on whom penalty was proposed to be imposed u/s 112(a), 112(b) & 117 of the Customs Act - On adjudication, the goods were held liable for confiscation - Differential duty was demanded with penalty u/s 114AA as well - On appeal, the Commr.(A) held that the appellant wilfully misdeclared the number of carats of diamond powder and also observed that the appellant and G card holder admitted to such misdeclaration - Hence the appeals were dismissed - Thus the present appeal.

Held - Considering the contentions of both sides, there is no allegation of any connivance on part of the appellant - CHA and the importer - From the statements recorded from the appellant, it is seen that the mis-declaration is in fact on part of the importer - Hence the appellant has not committed any act of omission or commission so as to render the goods liable to confiscation and no penalty is imposable u/s 112(a) or u/s 112(b) of the Act - Hence the subject O-i-A merits being quashed: CESTAT

- Appeal allowed: DELHI CESTAT

2020-TIOL-712-CESTAT-MUM

CC Vs Morde Foods Pvt Ltd

Cus - The issue involved in all the appeals is about the eligibility of import of Cocoa powder against DFIA by various appellants - All other importers (other than M/s Ravi Foods Pvt Ltd who is a manufacturer exporter) are only traders and have imported various consignments of 'Cocoa Powder' against the export product 'Biscuits' under the transferred DFIAs - 'Cocoa Powder' cannot be equated with Flour/Atta/Maida and thus cannot be imported against the DFIAs issued against export of Biscuits before the issuance of Notfn 93 (RE-2010)/2009-14 by DGFT, permitting import of 09gm of 'Cocoa Powder' as additive/ingredient against export of 1kg of Biscuits - The Notfn is prospective only - In respect of all the appellants other than M/s Ravi Foods, Shri Ramesh Kumar Agarwal and Shri G.U.S.R. Subbarao, the consignments are cleared by the jurisdictional officers on the basis of Tribunal's decision in the case of M/s Kushalchand & Co. - SCNs issued were dropped by lower authorities and the department is in appeal against such dropping - The contention of Revenue is correct on merits - However, the goods as well as Licences have been presented by various importers, before Customs authorities - Proper officers have gone through the Licences and after satisfying themselves and extended the benefit of exemption contained in respective notifications citing the decision of the Tribunal in the case of Kushalchand& Co. - Therefore, no elements of suppression of fact, misstatement, misrepresentation which necessitate invocation of extended period are present in the circumstances of the cases on the part of various importers - Therefore, though it was open to the department to revise the assessments, the same should have been done in the normal period - It is not free for the department to invoke extended period - Therefore, the appeals made by Revenue survive, though survive on merits, demands being hit by limitation; appeals are liable to be rejected on the issue of limitation.

Coming to the appeals filed by M/s Ravi Foods and others, revenue has provisionally assessed the bill of entry and on adjudication Commissioner has not only denied the exemption Notification but also confiscated the imported cocoa powder and allowed the same to be redeemed on payment of redemption fine in lieu of confiscation - He has also imposed penalties on the importer and their personnel - Though assessing the bill of entry provisionally is the prerogative of department and the department is in its right to assess the bill of entry provisionally pending any enquiry or clarification, seizure and confiscation are not warranted - There were a number of importers who have imported 'Cocoa Powder' in place of 'Flour/Atta/Maida'; proper officers have allowed the exemption and cleared the consignments applying the decision of Tribunal in the case of Kushalchand - There is nothing on record to show that M/s Ravi foods Pvt Ltd have done anything special than other importers to warrant seizure confiscation and imposition of penalties - The department was very much aware of such imports - Only because the department has realised its error in not appealing against the decision of Tribunal in the case of Kushalchand, the imports by the appellant do not become liable for confiscation and the importers liable for penalty - The confiscation of goods, imposition of fines and penalties are not justified and are beyond the legal provisions - Tribunal is not inclined to accept the contentions of Special Counsel relying on the decision of Apex Court in Weston Components Ltd 2002-TIOL-176-SC-CUS - Consequently, imposition of penalty on the two officials is not justified and is not legally sustainable - On merits, the importers are not eligible to import 'Cocoa Powder' against the items 'Flour/ Atta/Maida' - However, Revenue appeals are liable to be rejected on the grounds of limitation, in respect of other respondents herein, except M/s Ravi Foods Pvt Ltd.: CESTAT

- Appeals partly allowed: MUMBAI CESTAT

I-T - Income embedded in payment made to an international celebrity for participating in product launch event abroad, is taxable in India & withholding tax liability is attracted in respect of such payment: ITAT

TP - It is fit case for remand where AO deviates from directions issued by DRP and proceeds to compute losses which were not proposed in draft assessment order: ITAT

TIOL CORPLAWS

SEBI - Ad-interim order passed in writ petition allowing maintenance of status quo can be set aside as withdrawn: HC

IBC - Since Balance Sheet should be read along with Directors' Report thus mere acknowledgement of debt in Balance Sheet without considering other documents and reports amounts to acknowledgement u/s 18 of Limitation Act: NCLAT