Kakkar Complex Steels (P) Ltd Vs CIT

Whether provisions of Section 154 of the Act can be invoked only if there is any error apparent on record in the relevant order - YES: HC

Reference answered in favor of Revenue: PUNJAB AND HARYANA HIGH COURT

2020-TIOL-628-ITAT-DEL

Ramphal Hooda Vs ITO

Whether the exemption u/s 54F can be allowed to the assessee where proceeds from sale of old property are invested in purchase of new property registered in the name of the assessee's spouse - YES: ITAT

- Assessee's appeal allowed: DELHI ITAT

Rameshwar Lal Vs DCIT

On appeal, the Tribunal finds there to be no infirmity in the order of the CIT(A) and upholds the same.

- Assessee's appeal dismissed: DELHI ITAT

Rishendra Pal Singh Vs ITO

Whether re-assessment notice and pursuant proceedings are vitiated if the approval for the same is granted by the Additional CIT in a mechnical manner & without proper application of mind - YES: ITAT

- Assessee's appeal partly allowed: DELHI ITAT

Manojkumar Natvarlal Bhatt Vs ITO

Whether further additions can be made on account of contribution to superannuation fund by assessee's employer, where such amount is already included in the total income of the assessee - NO: ITAT

- Assessee's appeal allowed: AHMEDABAD ITAT

Shri Vithalbhai H Patel Vs ITO

Whether income from sale of dry fruits is to be disallowed in entirety where neither the assessee nor the AO provides details of the varieties & quantity of dry fruit produced and their respective sale price - NO: ITAT

- Assessee's appeal partly allowed: AHMEDABAD ITAT

Vijay Enterprises Vs ITO

Whether onus is on the assessee to produce the identity of the suppliers and genuineness of transactions – YES : ITAT

Whether non appearance of parties  in court proceedings despite service of notices to such end and unnecessary delay, justifies passing of ex parte order – YES : ITAT

- Assessee's appeal dismissed: MUMBAI ITAT

SERVICE TAX

Pearl Travels Vs CCE & ST

ST - Rent-a-cab operator service - As regard the demand under the said category, Bench finds that the issue is decided against the appellant as per the judgment of Gujarat High Court in the case of Vijay Travel, therefore, the demand on merit is clearly sustainable - however, demand is hit by limitation: CESTAT [para 6, 7]

ST - Business Support service - In the present case, the appellant has provided the support service of providing driver, cleaner and maintenance of buses which are owned by the company M/s. Welspun - There is no doubt or dispute that M/s Welspun is an exclusive commercial organization and carrying out their manufacturing and sales activity in the factory where the appellant have provided the services, therefore, the services provided by the appellant is undoubtedly in relation to business or commerce - Bench is of the view that it is not necessary that only those support services which are identical or similar to the services under the inclusion clause will fall under business support service - The services mentioned in the definition as inclusive are some of the services apart from all the services which are provided in relation to business or commerce - demand under business support service was rightly invoked by the revenue - As regards limitation, since there was no ambiguity as regard taxability of appellants' service under the head of Business Support Service, non-payment of service tax without informing the department is clearly under suppression of fact on the part of the appellant, therefore, the demand for extended period is rightly invoked by the Adjudicating Authority and the First Appellate Authority: CESTAT [para 8, 9, 11]

- Appeal partly allowed: AHMEDABAD CESTAT

CENTRAL EXCISE

CCE & CGST Vs Birla Corporation Ltd

CX - The assessee-company is engaged in manufacture of Cement falling under Central Excise tariff hearing 2523 and paid Excise duty on the finished product - The assessee also availed benefit of the Rajasthan Investment Promotion Policy scheme, as per which the assessee is provided with AT 37 B Challan which can be used for payment of subsequent Sales Tax /VAT liability - During the relevant period, the assessee used VAT 37B challan towards payment of sales tax liability on sale of finished goods cleared from factory - The Department opined that since the amount of sales tax paid through Form VAT 37B challan amounts to non-payment of sales tax, the value of the VAT 37B challan was confirmed as part of the assessable value u/s 4 of the CEA 1944 - The Department issued SCN whereupon duty demand was raised u/s 11A(1) of the CEA 1944 - Interest was demanded and penalty was imposed too - On adjudication, the proposals in the SCN were confirmed - On appeal, the Commr.(A) set aside the O-i-O - Hence the Revenue's appeal.

Held - The Commr.(A) rightly held that the matter stands settled by the Tribunal's decision in Shree Cement Limited vs. CCE, Alwar and so is no longer res integra - It was held therein that for the initial period, the assessees were required to remit the VAT recovered by them at time of sale of goods manufactured - A part of such VAT is given back to them in the form of subsidy in Challan 37B - Such challans are as good as cash but can be used only for payment of VAT in the subsequent period - In terms of the scheme of the Government of Rajasthan, payment of VAT using such challan is considered to be legal payment of tax - In light of such findings, the O-i-A passed in the present case merits being upheld: CESTAT

- Revenue's appeal dismissed: DELHI CESTAT

Aura Solar Products Pvt Ltd Vs CCE

CX - Allegation is (i) M/s Aura (appellant) have cleared portable lamp (in sets of two lamps) by projecting the same as "solar lantern" in their invoices and in other relevant documents to fraudulently avail the exemption under Notification No 6/2002-CE as amended as applicable to Non conventional energy devices - That by removing set of two lanterns along with one PV Module and Photovoltaic system, M/s Aura supplied an extra portable lantern under the guise of whole set constituting a photovoltaic system; and in the said set, one lamp did not appear to be entitled for the said exemption; (ii) M/s Aura and M/s Hypone, in connivance with M/s RMP, have suppressed and mis-stated the facts, manipulated the documents and accounts and contravened the provisions of CEA, 1944 and the rules framed thereunder with intent to evade payment of CE duty on the portable lanterns so manufactured and cleared by them; that value of clearance were liable to be clubbed for the purpose of SSI exemption - demand confirmed hence appeal to CESTAT.

Held: From the facts recorded by the adjudicating authority it is clearly evident that the manner in which the goods were being cleared by the appellant was in a package comprising of two lanterns along with a solar photovoltaic panel - SPV Panel has the capacity and provisions to charge both the lanterns simultaneously - The packaging and the manner of marketing the product also suggest that both the lamps in the package are marketed as solar lanterns - It is an admitted fact and a fact not in dispute that appellants do not sell the single lantern individually or separately and that being so revenue has no jurisdiction to vivisect the package and classify one lantern separately - The classification of the goods need to be determined in the form and manner in which the same is cleared and not by unbundling/ vivisecting the package into individual components to determine their classification - No support in the technical opinion rendered by IIT Mumbai to classify the goods in the manner they have been classified by the revenue authorities - technical opinion given by the IIT Professor clearly states that the normal mode of charging the batteries in the lamps will be solar power only - Only conclusion that can be arrived is that the goods in the form and manner in which they are cleared for sale to consumers are nothing but "Solar Power Generating System" or "Solar Photovoltaic Lantern" and the exemption claimed by the appellants in respect of same under Sl No 237 of Notification No 6/2002-CE as amended (Sl No 18 of List 9) is admissible to the whole package - Vivisection of the package to classify a part of such package and deny exemption in respect of one lamp out of the two is neither justified nor having any basis in law - No merits in the order of the authorities below - as the issue of admissibility of exemption itself is decided in favour of assessee, Bench is not required to go into the other issues of limitation etc. - appeals allowed with consequential relief: CESTAT [para 4.3, 4.5, 4.6, 4.7, 5.1]

- Appeals allowed: MUMBAI CESTAT

CUSTOMS

CC Vs Box Corrugators and Offset Printers

Cus - The issue at hand pertains to the jurisdiction of DRI officers to issue SCN in Customs matters - The Tribunal allowed the assessee's appeal holding that the for the period subsequent to the amendment, the matter i.e. the DRI officers having the proper jurisdiction to issue the SCN or not had came up before the High Court of Delhi in Mangali Impex vs. Union of India and that the High Court held that even the newly inserted Section 28(11) did not empower either DRI or DGCEI officers to issue SCN or adjudicate for period prior to 8.4.2011 - It was observed that various other High Courts took a contrary view in the decisions in Sunil Gupta vs. Union of India and Vuppalamritha Magnetic Components Ltd. vs. DRI (Zonal Unit), Chennai - In view of the conflicting positions taken by the High Courts, the matter reached the Supreme Court and was pending disposal, the Tribunal noted.

Held - The issue relating to jurisdiction of DRI Officials to issue show cause notice to the Assessee in such cases is said to be pending before the Supreme Court and in the SLP, and the SLP is stated to be pending before the Apex Court - Also considering the fact that the Tribunal clearly protected the interest of both the Revenue as well as of the assessee by directing the assessing authority to keep the matter pending and maintain status quo till the Apex Court decides the Revenue's appeal in Mangali Impex, there is no scope for this court to intervene in the matter: HC

- Revenue's appeal disposed of: MADRAS HIGH COURT

Touchwood Industries Vs CC

Cus - This appeal is filed against O-I-A - The assessee had filed Bill of Entry for clearance of goods by describing them as "Educational Charts" and classification under CTH 49059990 and attracting duty at "Nil" rate - From the terms of entry, it is very clear that heading 4905 is in respect of maps and globes and not in respect of educational charts of any other type - This is further very clear from the HSN Explanatory Notes for the heading 4905 - Even assessee on the Bill of Entry have not claimed that these goods are maps of any kind - When it is not even the case of importers that the imported goods are maps, then they are definitely not justified in claiming the classification under heading 4905 - Hence their claim for classification under heading 4905 99 90 has been rightly rejected by the lower authorities - The alternative claim of assessee that the goods in question should be classified under heading 4901 as printed books and the benefit of exemption at S No 160 of Notfn 21/2002-Cus should be allowed to them has been rejected by Commissioner (A) - When the issue of classification of the goods in dispute was not an issue before the bench then this decision cannot be an authority on the subject - The Supreme Court in case of Dilip Kumar & Company 2018-TIOL-302-SC-CUS-CB has laid down the principles of interpretation of fiscal statues and notifications issued under these statues - By applying the principles of interpretation laid down by Apex Court, Tribunal is not in position to uphold the contention of assessee in respect of admissibility of exemption under Notfn 21/2002-Cus - No infirmity found in impugned order determining the classification of impugned goods under Heading 4911 99 90, which is based on the terms of headings in Customs Tariff and HSN Explanatory Notes for the said heading - Hence, no merits found in the appeal filed by assessee: CESTAT

- Appeal dismissed: CHANDIGARH CESTAT

TII

TP - It is settled principle that an internal comparable uncontrolled transaction is more noteworthy vis-a-vis an external comparable: ITAT

TP - Assessee can claim there to have been violation of principles of natural justice where data collected by TPO u/s 133 has been shared with assessee: ITAT

TIOL CORPLAWS

Code of Civil Procedure - In comparative advertisement, comparison of two products cannot be false as it would cause confusion in mind of consumer who may be mislead: HC

Arbitration and Conciliation - By virtue of Business Transfer Agreement, entire business undertaking transfers including arbitration agreement thus petitioner has stepped into shoes of ETA and can seek appointment of Arbitrator to resolve dispute: HC