Four Star Associate Vs ITO

In writ, the High Court directs that stay application filed in support of the appeal against the subject orders, be disposed off within two months' time. It also directs that the demand notice be kept in abeyance in the meanwhile.

- Writ petition disposed of: KERALA HIGH COURT

2020-TIOL-1078-HC-KERALA-IT

Eurotech Marketing Vs ITO

In writ, the High Court directs the jurisdictional CIT to hear and dispose off the assessee's appeal. It also directs the assessee to deposit 12.5% of the duty demanded, within one month's time.

- Writ petition disposed of: KERALA HIGH COURT

2020-TIOL-1077-HC-KAR-IT

CIT Vs Hical Technologies Pvt Ltd

On appeal, the High Court observes that the issues raised herein stand settled in favor of the assessee vide the judgments in the cases of COMMISSIONER OF INCOME TAX Vs. HEWLETT PACKARD GLOBAL SOFT LTD. and COMMISSIONER OF INCOME-TAX Vs. YOKOGAWA INDIA LTD. Hence it proceeds to answer the issues in favor of the assessee.

- Revenue's appeal dismissed: KARNATAKA HIGH COURT

2020-TIOL-760-ITAT-DEL

Srikant Shah Vs ITO

Whether penaty notice is unsustainable if it does not specify as to under which limb of the provisions the penalty has been imposed - YES: ITAT

- Assessee's appeal allowed: DELHI ITAT

Seahorse Pharma Pvt Ltd Vs ITO

Whether in order to claim expenditure u/s 37(1), the assessee has to prove incurring of expenditure which is not capital expenditure or personal expenditure of the assessee and that such expenditure was incurred wholly and exclusively for the purpose of the business – YES: ITAT

- Assessee's appeal allowed: AHMEDABAD ITAT

DCIT Vs Sun Petrochemicals Pvt Ltd

Whether in order to claim depreciation u/s 32, the assessee has to demonstrate that it owns an asset wholly or partly & that such asset is used for the purpose of business or profession – YES : ITAT

- Revenue's appeal dismissed: AHMEDABAD ITAT

DCIT Vs Sova Ispat Ltd

Whether to determine the nature of incentive or subsidy, the objective behind it will be deciding factor wheres the form or method of the payment through which the subsidy is given is irrelevant - YES: ITAT

Whether the amount of subsidy was equivalent to 75% of the sales tax paid by the beneficiary does not imply that the same was in the form of refund of sales tax paid - YES: ITAT

- Revenue's appeal dismissed: KOLKATA ITAT

Swetha Health Research Pvt Ltd Vs DCIT

Whether capital gains arising from sale of land on which building is constructed, would be taxable – YES: ITAT

- Assessee's appeal dismissed: BANGALORE ITAT

Polo International Vs State Of UP

GST - Instant petition has been filed bypassing the remedy of appeal under Section 112 of the Act on the ground that the appellate Tribunal has not been constituted till date – Central Government has issued Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019 notified in the Gazette of India dated 3rd December, 2019 stipulating that in such a situation, the three months' period shall be considered to be the date on which the President or the State President, as the case may be, of the Appellate Tribunal after its constitution under Section 109, enters office; that the petitioner can wait and avail the remedy of filing appeal as and when the Tribunal is constituted; that since the seized goods have already been released, therefore, no prejudice is going to be caused to the petitioner at the present moment – Petitioner fairly admits the legal position as also the fact that the goods have been released - instant petition is, therefore, disposed of by providing that the petitioner can invoke the remedy of filing appeal before the Tribunal in terms of the provisions of the Central Goods and Services Tax (Ninth Removal of Difficulties) Order, 2019: High Court

- Petition disposed of: ALLAHABAD HIGH COURT

2020-TIOL-1087-HC-P&H-GST

Shiv Shakti Udhyog Vs UoI

GST - Petitioner challenges vires of Rule 117(1A) of CGST Act, 2017 and seeks direction to Respondent to permit Petitioner to electronically upload form TRAN-1 or avail input tax credit in monthly return GSTR-3B - Petitioner contends that issue involved is squarely covered by judgment of this Court in the case of Adfert Technologies Pvt. Ltd. - 2019-TIOL-2519-HC-P&H-GST , SLP filed by Revenue against aforesaid decision havine been dismissed – Petitioner also submits that Delhi High Court in the case of Brand Equity Treaties Ltd. 2020-TIOL-900-HC-Del-GST has permitted Petitioners to file TRAN-I on or before 30.06.2020 and further directed the Respondents Revenue to permit all other similarly situated tax payers to file TRAN-I on or before 30.06.2020; that this opinion has been approved in SKH Sheet Metals Components - 2020-TIOL-1031-HC-DEL-GST .

Held: Delhi High Court though has not declared Rule 117(1A) ultra vires the Constitution, nonetheless treated as violative of Article 14 of Constitution of India being arbitrary, discriminatory and unreasonable – in the instant case, the Petitioner has challenged vires of Rule 117 (1A) of Rules, however Bench does not think it appropriate to declare it invalid as it is of the considered opinion that Petitioner is entitled to carry forward Cenvat Credit accrued under Central Excise Act, 1944 - Repeated extensions of last date to file TRAN-1 in case of technical glitches as understood by Respondent vindicate claim of the Petitioner that denial of unutilized credit to those dealers who are unable to furnish evidence of attempt to upload TRAN-1 would amount to violation of Article 14 as well Article 300A of the Constitution of India - In view of decision of this Court in the case of Adfert Technologies Pvt. Ltd. (supra) and Delhi High Court in the case of Brand Equity Treaties Ltd. (supra) present petition deserves to be allowed and is accordingly allowed - The Respondents are directed to permit Petitioner to upload TRAN-1 on or before 30.06.2020 and in case Respondent fails to do so, the Petitioner would be at liberty to avail ITC in question in GSTR-3B of July 2020 - respondents would be at liberty to verify genuineness of claim(s) made by Petitioner: High Court [para 7 to 9]

- Petition allowed: PUNJAB AND HARYANA HIGH COURT

2020-TIOL-1086-HC-P&H-GST

Abhishek Modgil Vs State Of UT Chandigarh

GST - Petitioner is proprietor of M/s Mahadev Metals and is stated to have committed tax evasion to the tune of Rs.4,02,00,136/- by generating bogus invoices of sales and purchases - petitioner is seeking anticipatory bail in the matter of FIR registered under IPC - Petitioner's counsel submits that petitioner is a young boy of 24 years, just a matriculate and is not even educated enough to understand or carry out transactions of such high magnitude running into more than Rs. 20 crores; that he has been simply made a scapegoat; that the identity documents of the petitioner were misused and a dummy firm was created, wherein alleged bogus entries were made to evade the government taxes; that the petitioner has nothing to do with these transactions and he is ready to join the investigation; that since the case is based on documentary evidence which are in police possession, custodial interrogation of the petitioner is not required. Counsel for Revenue contended that custodial interrogation of the petitioner is necessary to elicit truth.

Held: Bench is of the considered view that the petitioner deserves concession of anticipatory bail - All the documents are already in possession of the police - Whether the petitioner had any role to play in the entire gamut or he has been made scapegoat, as alleged, can be ascertained once the petitioner joins the investigation vis a vis the documentary evidence already seized - Petitioner is ordered to be released on anticipatory bail on his furnishing bail bonds and surety bonds of local and sound surety, to the satisfaction of Chief Judicial Magistrate/ Duty Magistrate, Chandigarh, subject to his complying with provisions contained in Section 438(2) Cr.P.C: High Court [para 5, 6]

- Petition allowed: PUNJAB AND HARYANA HIGH COURT

2020-TIOL-1085-HC-P&H-GST

Bright Vijaywargi JV Vs UoI

GST - Petition filed under Article 226/227 of the Constitution of India for the issuance of a writ, in the nature of mandamus for directing the respondents to issue password to the petitioner against the provisional ID for TIN allotted to it so that it can migrate itself from VAT to GST regime and also to issue GST Registration Certificate which has not been done till date despite the fact of having sent various E-mails and letters to various authorities etc.

Held: Without adverting to the merits of the case, the present petition is disposed of with a direction to respondent No.2-Goods and Service Tax Network to consider and decide the E-mail in accordance with law within six weeks - In case, on consideration, the competent authority reaches to the conclusion that the relief sought by the petitioner is admissible to it, in such eventuality, the consequential relief be allowed - However, in case, any deficiency is noticed in the documents, before rejecting the case of the petitioner, it be afforded an opportunity of hearing: High Court

- Petition disposed of: PUNJAB AND HARYANA HIGH COURT

2020-TIOL-33-AAAR-GST

CMS Info Systems Ltd

GST - O n the question of availability of Input Tax credit on purchase of motor vehicles [cash carry vans used for cash management business] and supplied post usage as scrap, Members of the Authority for Advance Ruling differed, hence a reference was made to Appellate authority - AAAR noted that the GST Council in its 28th meeting had felt the need for widening scope of ITC in respect of motor vehicles used for transportation of money for or by a banking company or financial institution and recommended amendments; therefore, AAAR viewed that given the collective mind of the GST Council on the subject, argument stands clinched in favour of Respondent Revenue - Inasmuch as, as the law stands, no credit is available - Applicant challenged this order before the Bombay High Court - Bench noted that the fundamental submission of the petitioner before the Maharashtra Appellate Advance Ruling Authority (AARA) was the fact that 'money' would stand covered by the definition of 'goods' under Section 2(52) of the GST Act so long as the same is not used as legal tender and this argument was based on the basis of the definition of money provided in Section 2(75) of the GST Act - High Court observed that the aforesaid principal submission though recorded, has not been dealt with at all in the impugned order by the AAAR - Further observed that the reliance placed in the impugned order upon the Press Note issued subsequent to a GST Council meeting recommending to allow of input tax credit in respect of the motor vehicles used for transportation of money, would not by itself lead to the conclusion that prior thereto, money was not included within the definition of goods; that this issue has to examined in terms of the definition of 'goods' and 'money' found in GST Act; that the entire issue before the AAAR as raised by the petitioner was whether the vans / motor vehicles in which the petitioners were transporting cash, would be "money" for the purpose of Section 2(52) of the GST Act; that since this aspect had not been dealt with in the impugned order dated 6th August, 2018 of the AAAR, the decision making process has not been complied with by the Authority; that ignoring a submission would render the order vulnerable to judicial review by the High Court - Inasmuch as the impugned order was set aside and the matter was remanded to the Appellate authority for fresh disposal in accordance with law - AAAR has, therefore, taken up the case for fresh decision - Matter heard on 14.10.2019.

Held: Bench is inclined to concur with the appellant's contention that what is being transported by them in the cash-carry vans is not 'money' but 'goods' since they cannot use such 'money' for any purpose, whatsoever - When it is established that the appellant cannot use the 'money', which belongs to their clients, at any stage of the activities carried out by them, thus ruling out any possibility of the subject 'money' transported by them, as being used as legal tender at any stage of the performance of the services rendered by them, it can adequately be inferred that the subject 'money' transported in the cash carry vans by them, ceases to be anything except "goods" under the facts and circumstances of the appellant's case - in the context of the present case, it is unavoidably warranted to deviate from the literal meaning provided to the term 'money' u/s 2(75) of the CGST Act, 2017 and it has been rightly obseved that what is being transported by the Appellant in their cash-carry vans is not "money" but the "goods" - such proposition is also supported by the Rule 138(14) of the CGST Rules and its Annexure to establish that the 'money' has been included in the Annexure alongside the other goods specified therein, which will not require any E-way bill for their movement or transportation by motorised conveyances from one place to another - it needs mention that rule 138(14) specifies those goods which do not require E-way bills for their transportation and among those goods, one of the items mentioned in the Annexure bearing the heading 'Description of Goods' is "Money” (Currency) which clearly indicates that the legislature has considered 'money' as 'goods' when money is being transported from one place to another - by applying the said interpretation in the present fact and circumstances of the case in hand, it can be decisively inferred that money under question is nothing but 'goods' - When it is thus established that 'money' transported by the appellant in the cash-carry vans can be considered as 'goods', ITC in respect of the cash-carry vans used for transportation of cash will be available to the appellant in accordance with provisions of s.17(5)(a)(ii) of the CGST Act, 2017 - Held therefore that Input Tax Credit against the GST paid on the purchase and fabrication of the motor vehicles used for carrying cash and bullions is available to the appellant: AAAR

- Reference answered: AAAR

2020-TIOL-32-AAAR-GST

HP India Sales Pvt Ltd

GST -  Applicant supplies Indigo Press printing ink (Electro Ink) bundled along with supply of ancillaries comprising of oil, binary ink developer, bib, blanket, print imaging plate and other machine products - Applicant had sought a ruling on the classification of ink supplied along with consumables and determination of the time and value of supply of printing ink with consumables under the Indigo Press contract - Authority for Advance Ruling had held that  Supply of Electro Ink along with consumables is a mixed supply as defined u/s 2(74) of the GST Act and is also a continuous supply of goods as defined in section 2(32) of the Act; that the time of supply of Electro Ink along with consumables under indigo press contract would be the earliest date between the date of invoice or the date of receipt of payment; that as regards value of supply of Electro Ink and consumables, the same would be the transaction value as reflected in the invoice issued u/s 31(4) of the GST Act - An  appeal was filed before the Appellate Authority and the AAAR held that i n a composite supply, the two or more taxable supplies have to be naturally bundled and one of the indicators of 'naturally bundled' supply is that it should be an industry practice; that the appellant had given no evidence that the program given is an industry practice; that the fact that the appellant offers his customers the option of a tier programme does not make the same an industry practice - also, what is more important is that the products are to be used on a HP printing machine and, therefore, for the best printing, only HP products have to be used - such requirement does not at all make it a composite supply as it has an element of compulsion in it whereas there is no place for compulsion in a composite supply - accordingly, holding that there is no reason to interfere with the order of AAR, the Appeal was dismissed by order dated 17.02.2019 - Thereafter, the appellant brought to the notice of the AAAR that the impugned order dated 17.02.2019 had not considered the additional submission dated 11.02.2019 in its entirety; that non-consideration of the said submissions is an error, which is an error apparent on the face of the record and hence the impugned order needs to be amended in view of the provisions of s.102 of the CGST Act, 2017 - Matter heard by AAAR.

Held: It is established beyond doubt that the bundled supplies made by the appellant to its customers has no 'principal supply' which is one of the primary conditions for any supply to be treated as a 'composite supply' as envisaged u/s 2(30) of the CGST Act, 2017 - All the consumables are being consumed together to achieve the desired output and in absence of any one of these consumables, the entire printing function will be stalled which clearly shows the importance of each of the components of the bundled supplies - at the same time, it also shows that none of the supplies are ancillary in nature -  All the illustrations mentioned in the FAQs, GST Flyers and CBIC Circulars cited by the appellant do not support the appellant's contentions, rather, they validate the observations of the AAAR to the extent that there is no principal supply in the bundle of supplies under question - It is concluded that though some of the submissions made by the appellant remained to be considered, yet after adequate consideration of the same, the Appellate Authority reaches the same conclusion as reached earlier in the appellate order and that is that the supply of ElectroInk along with other consumables by the appellant is not a composite supply and instead the said supply can be construed as mixed supply as it satisfies all the conditions stipulated for the 'mixed supply' under the provisions of s.2(74) of the Act - accordingly, it was rightly held by the AAR that the supply of ElectroInk along with the other consumables comprising of blanket, photo imaging plate, binary ink developers, HP imaging oil, blanket web and other machinery products is 'mixed supply' and not 'composite supply' as is being made out by the appellant - from the above analysis it is conspicuous that the additional submissions made by the appellant on 11.02.2019 do not have any significant bearing on the outcome of the case - No reason to amend the original order dated 17.02.2019: AAAR

- ROM application disposed of

SERVICE TAX

CENTRAL EXCISE

2020-TIOL-1089-HC-KAR-CX

Infosys Ltd Vs CST

CX - Assessee is engaged in business of rendering services in relation to information technology software and/or Information Technology enabled services and various other services - Being aggrieved by order passed by Tribunal in 2014-TIOL-409-CESTAT-BANG, assessee has filed aforesaid appeal contending that definition of ‘input service’ as defined under Rule 2(l) of CCR, 2004 as it stood up to 01st April, 2011 includes therein the services used in relation to setting up, modernization, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premise and as such it is eligible to avail Cenvat credit - Sub section (2) of Section 35 L of Central Excise Act was inserted by Act No. 25/2014 w.e.f. 06.08.2014 whereunder determination of any question having a relation to the rate of duty shall include the determination of taxability or excisability of goods for the purpose of assessment and it has been held that even in such circumstances, appeal lies to the Apex Court - However, he has contended that sub section (2) of Section 35L having been inserted on 06.08.2014, said provision would be in operation prospectively - A plain reading of the clause would clearly indicate that the department/revenue itself is of the clear view that the determination of dispute relating to “taxability or excisability of goods” is covered under term ‘determination of any question having a relation to rate of duty’ and as such appeal against orders of any Tribunal would lie before the Supreme Court - As held by Supreme Court in said case, these appeals lie to the Apex Court under Section 35L of Central Excise Act which alone has jurisdiction to decide the said questions, and in that view of the matter, these appeals are disposed of as not maintainable: HC

- Appeals disposed of: KARNATAKA HIGH COURT

2020-TIOL-907-CESTAT-DEL

Balajee Steel Industries Vs CC, CE & ST

CX - Assessee is engaged in manufacture of MS Angle, Bar, Round, Square and Flat - They are also availing Cenvat credit of duty paid on inputs and capital goods as provided under CCR, 2004 and utilizing such credit towards payment of duty on their final products - It was alleged that MS Flats as found entered in loose papers recovered during search have been removed in a clandestine manner without making necessary entries in their statutory records and without payment of Central Excise Duty with the intention to evade payment of duty and an amount was proposed to be recovered along with interest at appropriate rate and proportionate penalties - The most important aspect of the whole case is that in the SCN, there is no statement of any person, employee or director of assessee company which can show that the impugned loose papers/ rough papers recovered from the factory of assessee are actually related to the clearance made by assessee - Moreover, the revenue officer did not find the author of said loose paper/rough paper, there is no any other evidence available to corroborate the charge of SCN - In the absence of such corroborative evidence, no reliance can be placed on said loose papers/rough papers - Further, no evidence has been placed on record to show that excess raw materials were purchased or there was excess power consumption to corroborate the fact that there was clandestine removal - Also it has been the settled law that the loose papers/documents cannot be the sufficient proof of charges of clandestine removal unless there is corroborative evidence as was held by High Court of Delhi in case of Kuber Tobacco Products ltd. - Also the deposit of duty without protest is highly insufficient to become the conclusive proof of alleged shortage and clandestine removal - Adjudicating authority has wrongly confirmed the demand despite there was no evidence to prove the alleged clandestine removal of goods by assessee - Therefore, the impugned orders are hereby set aside: CESTAT

- Appeals allowed: DELHI CESTAT

Anmol Stainless Pvt Ltd Vs CGST & CE

CX - The assessee is engaged in business of manufacture of cold rolling of thick stainless sheets, slitting in small sizes and making stainless pipes - A SCN was issued alleging irregular availment of Cenvat credit along with interest and penalty - The assessee has done the reversal from opening balance of Cenvat credit in ER-1 return of the month of May 2014 which has already been verified and hence there is no further reversal required in the matter - Hence, the demand to the extent of Rs.94,120/- as confirmed by Commissioner (A) deserves to be set aside accordingly - The assessee has asserted that it had sufficient credit balance in its account and also produced a Chartered Accountant certificate for the same - Based on the applicable provisions under Rule 14 of CENVAT Credit Rules, as was in force during the period from April 2012 to March 2013, assessee is not required to pay any interest - Also, the concept as to "when can it be said that credit has been taken", has been lucidly explained by the Karnataka High Court in case of Bill Forge Pvt Ltd. 2011-TIOL-799-HC-KAR-CX - Since the assessee had sufficient credit balances, in any case, there would be no loss of Revenue to the exchequer - Therefore, the imposition of interest cannot sustain and hence, the same is set aside: CESTAT

- Appeal disposed of: KOLKATA CESTAT

CUSTOMS

2020-TIOL-1076-HC-DEL-NDPS

Mohd Hanif Vs NCB

NDPS - Bail application filed for grant of regular bail in SC No.37/17 arising out of NCB complaint no. VIII/15/DZU/15 registered by the Narcotics Control Bureau under Sections 21, 23 and 29 of NDPS Act, 1985.

Held: The recovered contraband from the parcel is 500 gms. Cocaine, (which is commercial quantity) - Statements of the accused including petitioner, recorded under section 67 of NDPS Act, corroborates the recovery of drug in the manner accused persons have dealt with which is admissible under section 27 of The Evidence Act - The Call Data Records (CDR) of the accused persons also corroborates that all three accused persons were in touch to receive the parcel - On 05.08.2016, controlled delivery operation was undertaken in coordination with DHL Courier Staff - The consignee/accused Abdul Rehman @ Dablu received the parcel, at that moment he was intercepted and upon enquiry, he revealed that he had received the said parcel on instructions of petitioner in the presence of public witnesses - Accused Abdul Rehman made a call to petitioner and petitioner came at Madan Pur Khadar near crossing to receive the said parcel and at that moment, he was intercepted by the team on the pointing of the accused Abdul Rehman - In preliminary inquiry, petitioner admitted that he had asked Abdul Rehman to receive said parcel on his behalf - Petitioner further revealed that he received the said parcel on instructions of Bartholomew Okoh @ Prince in the presence of public witnesses - Moreover, petitioner made a call to accused Prince on which he told petitioner to come at Janak Puri flyover, near Janakpuri Distt. Centre, New Delhi to deliver the parcel - Prince was waiting there to take the delivery of said parcel and he was intercepted while taking the delivery of the said parcel during operation at Janakpuri Flyover near Janakpuri District Centre - On checking the said parcel, 500 gms. of Cocaine was recovered from the foot massager concealed in two round shaped packets - The voluntary statements of accused persons recorded under section 67 of NDPS Act are inculpatory and admitted the delivery of parcel containing contraband - In view of facts, the judgments relied upon by the petitioner are not applicable in the present case - Moreover, there is an embargo under section 37 of NDPS Act to grant bail, unless the case is established otherwise, however, the petitioner has failed - As section 37 of NDPS Act is applicable in the present case, Bench is not inclined to grant bail - petition is, accordingly, dismissed: High Court [para 15 to 19]

- Petition dismissed: DELHI HIGH COURT

2020-TIOL-905-CESTAT-BANG

3M India Ltd Vs CC

Cus – Appellant imported Surgical Tape Rolls with brand names viz., Micropore, Transpore and Tegaderm Wound Dressings and cleared the same as 'skin barriers micropore surgical tapes' by availing benefit of exemption under Sl.No.22 of List 37 as mentioned in Sl.No.363A of Notification No.21/2002-Cus dated 01.03.2002 – Pursuant to investigations, the DRI issued a SCN dated 30.09.2011, demanding differential duty of Rs. 9,33,25,582, on imported Micropore, Transpore and Tegaderm, cleared during the period from October 2006 to February 2010 - It is alleged that 'Hypoallergenic Surgical Adhesive Tapes' (under the brand name micropore, Transpore and Tegaderm), sold as general purpose medical adhesive tapes, are not 'ostomy appliances' for managing the four types of ostomy; in terms of the exemption Notification concessional rate of 5% BCD and Nil rate of CVD are available only for 'Skin barrier micropore surgical tapes' used as an Ostomy product (appliance) for managing Colostomy, Ileostomy, Ureterostomy, Heal Conduit Urostomy Stoma cases – Demand confirmed and penalties imposed on importer and company officials, therefore, appeal before CESTAT – Appellant while justifying their claim for exemption also submitted that 'Skin barrier' and 'micropore surgical tapes' are two distinct products and there is no product corresponding to the description 'Skin barrier micropore surgical tapes' as averred in the impugned order.

Held:

+ Department has established that a product named and known as "Skin Barriers Micropore Surgical Tapes" exists – Bench finds that evidence of the same has been supplied as RUD to the appellants - Under such circumstances, the appellants contention that no product known as "Skin Barriers Micropore Surgical Tapes" exists and there should have been a comma (,) in between doesn't hold water - When such products are sold and used as such, it cannot be inferred that the notification was wrongly worded and, therefore, it is to be interpreted to mean Skin Barriers, Micropore Surgical Tapes, is not acceptable: CESTAT [para 21]

+ While Bench is in agreement with the coordinate bench decision in the case of Sutures India Pvt Ltd (supra) that there is no specific mention in the Notification that Skin Barrier Micropore Surgical Tapes have to be exclusively used for ostomy procedures and it is enough if they are capable of being used, Bench finds that to be eligible for exemption the impugned goods need to match the description as given in the notification and only then the question of their actual use or capability of being used would come into play: CESTAT [para 26]

+ In the instant case, the department could produce evidence to show that products known as "Skin Barriers Micropore Surgical Tapes" exist - the real issue is whether the impugned goods can be categorised as "Skin Barriers Micropore Surgical Tapes" to be eligible to the exemption - the distinction between the impugned products and the items eligible for exemption has been clearly established - It was also established that products which can be described as "Skin Barriers Micropore Surgical Tapes" exist, therefore, the department could satisfactorily demonstrate the twin points that the impugned goods do not satisfy the description given in the Notification and that the products mentioned in the Notification exist in reality - there is no ambiguity as far as the description of the items in the notification and that the impugned goods do not satisfy such description so as to be eligible for exemption - As the wordings of the notification give meaning which is not ambiguous, we find that the Apex Court's judgment in Dilip Kumar case - 2018-TIOL-302-SC-CUS-CB is binding and needs to be followed: CESTAT [para 26]

+ Apex Court has held in the case of  Swaraj Mazda Ltd 1995 (77) ELT 505 (SC)  that the Tribunal is not precluded from deciding the question on merits because of its earlier decision regarding the earlier period: CESTAT [para 28]

Limitation:

++ Show Cause Notice is issued on 30.09.2011 demanding duty for the period October 2006 to February 2010 – Appellant importers have described the products clearly showing various applications for general purpose and for securing ostomy pouches/devices/appliances etc; over the past several years the consignments have been subjected to physical examination by officers of the customs department before allowing clearances of the same; no objection whatsoever had been raised the claim of subject exemption under Notification No.21/2002-Cus at any time in the past - The fact that the appellants are importing from a long period is not disputed - It is not the case of the department that all the consignments were cleared under self-assessment procedure - It is also not the contention of the Revenue that the impugned products were not subjected to examination or assessment any time - Moreover, the decision in the case of Sutures India Pvt Ltd is sufficient to believe that the appellants had a bona fide belief about the availability of exemption - Therefore, Bench is of the considered opinion that the extended period is not invokable and penalties are also not imposable - Appeal C/25625/2013 is partly allowed confirming demand of duty for normal period only and by setting aside penalties - Appeal Nos. C/25676/2013 & C/25677/2013 filed by Authorized signatory & Head, Regulatory Affairs and Quality Assurance are allowed: CESTAT [para 29, 30]

- Appeals partly allowed: BANGALORE CESTAT

TP -Matter warrants remand so as to enable TPO to examine and exclude certain comparable companies which have factors distinguishing them from assessee-company: ITAT

I-T - Where income of Cyprus-based company is not taxable in India, then there is no scope for application of Section 163 of I-T Act thereon: ITAT

TIOL CORPLAWS

SAT - Regulatory authority while exercising powers u/s 34 has power enough to issue an order of disgorgement: SAT

IBC - Application for CIRP is not barred by limitation as acknowledgment in form of letters/ OTS/ Settlement terms has been made by 'Corporate Debtor' before expiry of period of limitation: NCLAT