Ispat Projects Ltd Vs CIT

Whether the subsequent excess realization in Indian rupees due to adverse exchange rate of rupee cannot be said to be unrelatable to the particular export - YES : HC

Whether before an amount received by an exporter can be treated as part of the export turnover, it must also be shown that the convertible foreign exchange was received in or brought into India within a period of six months from the end of the previous year or within such extended period as the RBI may allow - YES : HC

Whether the object of incorporating Section 80-HHC in the Act was clearly to grant incentive to the exporters who earn valuable foreign exchange for country - YES : HC

- Assessee's appeal disposed off: CALCUTTA HIGH COURT

2020-TIOL-1138-HC-KERALA-IT

Paiva Manufacturing Company Vs ITO

In writ, the High Court observes that a rectification application filed by the assessee is pending disposal. Hence it finds that the assessee's grievance can be redressed by directing the ITO concerned to decide upon the assessee's rectification application within 45 days' time from date of receipt of copy of this order.

- Writ petition disposed of: KERALA HIGH COURT

CIT Vs Samsung India Software Operations Pvt Ltd

On appeal, the High Court observes that the questions of law raised in this appeal already stand disposed off by the Apex Court's judgment in Commissioner of Income Tax, Central III VS. HCL Technologies Ltd as well as in light of the Circular No. 1/2013 dated 17.01.2013. Hence the questions of law are answered in favor of the assessee.

- Revenue's appeal dismissed: KARNATAKA HIGH COURT

CIT Vs C Ramaiah Reddy

On appeal, the High Court finds that the issues canvassed by the Revenue already stand settled by the judgment of this court in a different matter. Hence it observes there to be no substantial question of law warranting its intervention.

- Revenue's appeal dismissed: KARNATAKA HIGH COURT

2020-TIOL-801-ITAT-MAD

Aravind Modi Vs ITO

Whether additions framed on account of unexplained cash credit merit being sustained where assessee engaged in sham transactions of sale and purchase of bogus shares, despite knowing of the iliicit nature of such transaction & attempts to convert illicit money into legitimate under guise of exempt capital gains - YES: ITAT

- Assessee's appeal dismissed: CHENNAI ITAT

Bijan Kalita Vs DCIT

Whether when assessee's accounts are subject to tax audit and auditor has certified balance sheet, then genuineness of creditors should not be doubted - YES: ITAT

- Assessee's appeal allowed: GAUHATI ITAT

Rajesh Kumar Bajaj Vs ACIT

Whether income surrendered by assessee in course of Survey proceedings is liable to be taxed as income falling u/s 68 to 69D, where no explanation is given for such amount - YES: ITAT

Whether therefore, such amount is rightly taxable at higher rate of tax provided u/s 115BBE - YES: ITAT

- Assessee's appeal dismissed: INDORE ITAT

SERVICE TAX

CENTRAL EXCISE

2020-TIOL-973-CESTAT-KOL

Hindustan Motors Ltd Vs CCE

CX - This is second round of litigation after the matter was once remanded by Tribunal to the original adjudicating authority to calculate the quantum of interest on refund to be paid to the assessee - The assessee is engaged in manufacture of motor vehicles, which were eligible for exemption under a Notification, if they are registered as Taxis - Since the registration of vehicles, takes place much after the manufacture and sales are completed, the exemption is available by way of refund on production of the evidence that the vehicles have been registered as taxis - They have claimed the refund, which was sanctioned to the assessee, but with delay - Section 11BB of CEA, 1944, was introduced on 26.05.1995 providing for payment of interest on delayed refunds - The dispute pertains to eligibility of interest to the assessee for the claim filed prior to 26.05.1995, which has been denied to them by the Department - The assessee claimed interest on refund filed prior to 26.05.1995 also, while the Department denied the same - As can be seen in respect of refund claims, filed prior to 26.05.1995, the claimant is entitled to interest w.e.f. 25.08.1995 i.e. three months after Section 11BB had received presidential assent - Assessee is entitled to interest only from 25.08.1995 till the date of payment of refund and not before that date: CESTAT

- Appeal allowed: KOLKATA CESTAT

Electroteknica Switchgears Pvt Ltd Vs Commissioner of CGST & CE

CX - The assessee is manufacturing Starter Panel, Motor Control Centre, Transformer and Transwitch - It was alleged that the inputs sent to the Job worker were not received back by assessee after repair/reprocessing from the job worker's end within the stipulated period of 180 days and hence, the Cenvat Credit on those items were directed to be reversed - Both the Lower Authorities have ignored the observations and directions of Tribunal and have kept beating about the bush that the documents were not produced in the earlier instance before the Adjudicating Authority and hence, they are not satisfied with the fact and submission of assessee that the goods had been received back from the job workers within the stipulated period of 180 days as recorded in "job worker register" as discussed in the Tribunal's Order in detail - There is no specific document prescribed under 4 (5) (a) under CCR, 2004 - According to Rule 4(5)(a) of CCR, 2004, Cenvat Credit shall be allowed even in cases where processed goods are sent to the job worker for further processing if it is established from the records, challans or memos or any other document produced by manufacturer taking credit that the goods after processing were received back in the factory within 180 days from the job worker's end - The impugned orders are set aside: CESTAT

- Appeal allowed: KOLKATA CESTAT

Orient Cement Vs CC,CE & ST

CX - The assessee had procured various duty paid inputs like MS Steels, angles and plates and utilise materials for various factory work like fabrication of capital goods - Various SCNs were issued to them covering period from April, 2003 to 06.07.2009 directing the assessee to show cause as to why CENVAT credit availed on these items be not reversed as they are not capital goods nor they are inputs and they are used for structural works - Another SCN was issued for reversal of amount of CENVAT credit availed during the period 07.07.2009 to November, 2009 on the same grounds - Prior to 07.07.2009, CENVAT credit availed on various MS plates, angles and channels, which are used for in the factory premises for fabrication as well as for structural purposes, CENVAT credit needs to be allowed as has been decided by the various benches of Tribunal and the High Courts - Accordingly, the demands raised with interest and penalties imposed for the period prior to 07.07.2009 is set aside - As regards to demands confirmed post 07.07.2009, the Chartered Engineer's certificate is not that very clear for the Tribunal to come to any conclusion - The Chartered Engineer's certificate needs to be considered by adjudicating authority to come to a conclusion as to how much quantity of steel has been used for the purposes of fabrication of capital goods and other work - Without expressing any opinion on the merits of case, for the period post 07.07.2009, matter remitted back to the adjudicating authority to reconsider the issue afresh - Another small issue which arose before the lower authorities was regarding eligibility to avail CENVAT credit of Rs.1,61,241/- in respect of Central Excise duty paid on tyres which were used for payloads - The revenue has sought to deny CENVAT credit on the ground that the said tyres are neither inputs nor capital goods - This issue is also now decided by Tribunal in case of Penna Cements - Accordingly, CENVAT credit is allowed on this point also: CESTAT

- Appeal disposed of: HYDERABAD CESTAT

CUSTOMS

MC Overseas Vs CC

Cus - In view of the fact that the appeal preferred by this petitioners was allowed by CESTAT vide order dated 23.12.2019 - 2020-TIOL-201-CESTAT-DEL and as much time has lapsed thereafter, the present petition has been preferred seeking reliefs namely, (i) For refund of the amount of Rs.11,70,865/- deposited by Petitioner No.1 vide TR6 Challan dated 07.11.2012 and refund of Rs.1.5 lakh deposited by Petitioner No.2 vide TR6 Challan No.199 dated 20.06.2018 along with interest in accordance with law; (ii) De-freezing of the Current A/c No. 52905086356 held by Petitioner No.1 in Standard Chartered Bank, Karol Bagh Branch; and (iii) For release of the seized goods.

Held: Bench directs the respondent authorities concerned to decide the claim of refund of the petitioners in accordance with law within a period of four weeks - insofar as de-freezing of the Current Account of the petitioner No.1 is concerned, it is fairly submitted by the respondents that they have already written a letter to the bank concerned for de-freezing the bank account, therefore, the grievance about the de-freezing of account does not survive - as regards the release of the goods which were seized, it is submitted by the counsel for the respondents that the goods in question were seized after the search was carried out much earlier in time, i.e., on 30.03.2012 and the said goods were kept in custody of the manager of the petitioner No.1, i.e. in the custody of Mr. Ajit Singh; that there is some unlawful activity by unknown persons and an FIR has also been lodged against Mr. Ajit Singh and thus the matter is pending before the Trial Court concerned on criminal side in Delhi and therefore an application has to be preferred by the petitioners for the release of the goods in accordance with the provisions of the Code of Criminal Procedure, 1973 - Bench grants liberty to the petitioners that upon proper presentation of the application under the Code of Criminal Procedure with proper averments, allegations and annexures for the release of the goods, the said application will be decided by the Trial Court concerned in accordance with law, rules and regulations and on the basis of the evidence on record - Petition allowed: High Court [para 7 to 10]

- Petition allowed: DELHI HIGH COURT

2020-TIOL-970-CESTAT-AHM

Swarna Oil Services Vs CC

Cus - The importers have imported a product described as Petroleum Hydrocarbon Solvent and have classified the same under CTH 27101990 while the lower authorities have upheld the classification of same under CTH 27101910 as Superior Kerosene Oil (SKO), import of which is restricted under ITC (HS) and can be made by State Trading Enterprises - The lower authorities have allowed redemption of imported goods on payment of fine and penalty, subject to the condition that the said goods are re-exported - It is not in dispute that for a product to be classified under 27101910 as SKO, it has to meet with the specifications in supplementary Note 'C' to Chapter 27 - From a perusal of the test reports of CRCL Delhi and CRCL Kandla, assuming the same to be correct, notwithstanding the difference in the test results between the two qua the parameter regarding final boiling point, it is seen that out of the 8 parameters on which the sample has to be tested for determining whether or not the same meets with the specifications of Kerosene, it is seen from both the test results that test have not been undertaken with respect to the parameters - Insofar as sulphur is concerned, though no test have been undertaken, Tribunal will for the sake of discussion assume that the said parameters have been met, as the same forms a part of the suppliers test reports and is within the parameters specified in IS 1459:1974 - However in respect of the other two parameters regarding burning quality and colour there is absolutely no evidence that the revenue has produced to establish that the said two parameters are met with - The revenue has neither through test results nor otherwise lead any evidence to show that the said two parameters were also met with - The law on the question that the burden of classification is on the Revenue is well settled by Apex Court in case of HPL Chemicals 2006-TIOL-37-SC-CX - In the absence of evidence that the imported goods meet with all the specifications laid down in supplementary note (c) to chapter 27, for a product to be classified as Kerosene, the case made out by the revenue cannot be sustained - Accordingly, the impugned orders are set aside: CESTAT

- Appeals allowed: AHMEDABAD CESTAT

TP - It is fit case for remand where provision of warranty requires re-consideration after examining copy of provision for warranty and warranty expenses: ITAT

TP - Merely because prescribed Form No. 3CEB is filed in accordance with Rule 10E r.w.s. 92BA, it will not make taxpayer susceptible to onerous investigation on transactions where he prima facie demonstrates that Section 92BA is wholly inapplicable: ITAT

TIOL CORPLAWS

Arbitration and Conciliation Act - Rliefs as prayed for in petition u/s 9 of Act cannot be allowed mechanically on its asking, as exercise of power by court is drastic and extraordinary: HC

Trade Marks Act - Defendant company incorporated with consent and knowledge of plaintiff firm and no objection of any kind is ever raised can be held guilty of unauthorised use of mark LIBERTY if none of products of defendant Company, except shoes which are procured from LSL bear trade mark of plaintiff firm: HC