2020-TIOL-812-ITAT-DEL

Adarsh Food Products Pvt Ltd Vs ITO

Whether additions framed u/s 68 are sustainable where framed without specifying the nature of the amounts received by assessee & without examining credits in the assessee's books - NO: ITAT

- Assessee appeal allowed: DELHI ITAT

2020-TIOL-811-ITAT-DEL

Arunachal Properties Pvt Ltd Vs ITO

Whether where the AO categorically shows there to be a genuine allegation that the transaction entered into by the assessee of booking the loss was not genuine, then the assessee is obligated to rebut such allegation - YES: ITAT

Whether therefore additions framed on account of client code modification as alleged bogus contrived loss merits being sustained where the assessee is unable to disprove the illicit nature of the transaction - YES: ITAT

- Assessee's appeal dismissed: DELHI ITAT

2020-TIOL-810-ITAT-KOL

DCIT Vs Coal India Ltd

Whether the AO can issue fresh notice when the proceedings initiated through previous notice are still pending and have not been finally disposed of - NO: ITAT

- Revenue's appeal dismissed: KOLKATA ITAT

2020-TIOL-809-ITAT-VIZAG

ACIT Vs Devi Sea Foods Ltd

Whether the deduction u/s 80IA cannot be denied solely on the ground that separate Profit & Loss account and balance sheet is not produced - YES: ITAT

- Revenues's appeal dismissed: VISAKHAPATNAM ITAT

2020-TIOL-1169-HC-DEL-GST

Procter And Gamble Home Products Pvt Ltd Vs UoI

GST - Anti-Profiteering - S.171 of the CGST Act, 2017 - Petition filed challenging the legality and validity of para 10 of the 'Bringing the Directorate General of Anti-Profiteering under Superintendence, Direction and Control of the National Anti-Profiteering Authority - Notification of detailed Guidelines by NAA' dated 04th October, 2019 issued by the respondent No.2 as well as the validity of all consequential notices and proceedings initiated by the respondents - Petitioners wish to withdraw the petition with liberty to raise all pleas and defences raised in the petition before the National Anti-Profiteering Authority.

Held: Writ petition and application are dismissed as withdrawn: High Court

- Petition dismissed: DELHI HIGH COURT

2020-TIOL-1168-HC-DEL-GST

GST - Petitioner had averred that refund is due to them under the provisions of the Integrated Goods and Service Tax Act, 2017 and Delhi Goods and Services Act, 2017 on account of exports made by the petitioner and supplies of computer hardware goods made to SEZ units - which are termed as 'zero rated supplies' in GST; that withholding of refund is violative of s.16 of the Act as well as sections 54 and 56 of the CGST Act, 2017 - Order passed on 19 th June 2020 listed the matter for 3 rd July and pursuant thereto respondents have filed a short affidavit in which it is stated that inaction on the part of the respondents of not disbursing the refund amount was owing to the non-functioning of the GST Appellate Tribunal which is beyond the control of the answering respondents; that the competent authority of the respondents in pursuance to the opinion of the review branch has directed filing of an appeal before the Appellate Tribunal challenging the order in appeal passed by the Commissioner (Appeals).

Held: It is apparent that the petitioner has succeeded in appeal vide order dated 23rd July, 2019 - Though nearly a year has passed, yet no proceeding has been filed challenging the said order till date - In the opinion of this Court, the petitioner cannot be asked to wait endlessly for the respondents to challenge the order dated 23rd July, 2019 - Consequently, the present writ petition is disposed of with a direction to the respondents to refund the amount as directed by the Commissioner (Appeals) vide order dated 23rd July, 2019 within four weeks - During this period, it shall be open to the respondents to file appropriate proceedings in accordance with law: High Court

- Petition disposed of: DELHI HIGH COURT

2020-TIOL-992-CESTAT-MUM

National Securities Depository Ltd Vs CST

ST - The issue for consideration is, whether the services provided by assessee to their Depository participants are in nature of "provision and transfer of information and data processing" services taxable under category of Banking and Other Financial Services as defined by Section 65(12) of FA, 1994 - Period of demand is from 01.04.2004 to 31.03.2009 - The assessee do not dispute that they are a body corporate and are covered by phrase "other body corporate" used in definition of Banking and Other Financial Services - For providing the facilities, assessee is electronically linked via satellite to various functionaries such as Depository Participants (DPs), issuing companies and their registrars and transfer agents, clearing corporations/ clearing houses of stock exchanges - All the business rules of assessee and the Statements of their Senior Vice President and Vice President show that they are providing for "provision and transfer of information and data processing" and these are provided in relation to their depository operations - Thus, assessee was providing for "provision and transfer of information and data processing" and these are provided in relation to their depository operations - Thus, the services provided by them to Depository Participants are covered by definition of Banking and Financial services and are liable to service tax under that category - From the facts as available on record specifically the correspondences with CBEC, it is found that the issue involved were in relation to Central Depository Services and not in relation to services of providing for "provision and transfer of information and data processing" - Since the services which are subject matter for present dispute were never disclosed to the concerned revenue authorities hence Tribunal is unable to uphold the contentions raised by assessee against invoking extended period of limitation to demand the tax from them - For upholding the invocation of extended period of limitation Tribunal rely on the decision of Gujarat High Court in Neminath Fabrics 2011-TIOL-10-HC-AHM-CX- The benefit of "cum tax value" as per section 67(2) of FA, 1994 should be extended to the assessee while determining the tax payable - The Commissioner has erred in not extending the benefit of tax already paid by assessee in respect of certain services sought to be taxed again in the present proceedings - Hence the matter for quantification of demands is remanded back to the original adjudicating authority for denovo consideration - Since the demand of tax is upheld, the demand of interest made under Section 75 of FA, 1994 is also upheld - Penalties under Section 77 are civil in nature and are imposed for infractions noticed - Since there is no dispute about such infractions as recorded by Commissioner in his impugned order, penalties as imposed under Section 77(2) are justified - Since the invocation of extended period of limitation is upheld, the penalties imposed under Section 78 cannot be faulted with in view of decision of Supreme Court in case of Rajasthan Spinning and Weaving Mills 2009-TIOL-63-SC-CX : CESTAT

- Appeal partly allowed: MUMBAI CESTAT

2020-TIOL-994-CESTAT-HYD

CCE, C & ST Vs Rani Plastic Pipe Industries

CX - The assessee is a manufacturer of PVC Pipes and PVC Compound and was availing the benefit of MODVAT credit under Rule 57 of erstwhile CER, 1944 - They filed a refund claim on 24.05.2010 with the Joint Commissioner pursuant to order issued by Settlement Commissioner - The original authority examined the application and found that the Settlement Commission has only ordered MODVAT credit to be given and not cash refund - In terms of Rule 5 of CCR, 2004, refund of credit can only be allowed in case input or input services are used in export of goods or services and for any reason, such credit cannot be used towards domestic clearance of goods - Therefore, the adjudicating authority rejected the refund claim filed assessee - There is no provision in Cenvat Credit Rules for refund of cenvat credit if the assessee is not able to utilise it for any other purpose, such as the factory being closed - The High Court of Karnataka in case of Slovak India 2006-TIOL-469-HC-KAR-CX , has however allowed such refund - The SLP filed by Revenue against this judgment has been dismissed by Apex Court in view of concessions made by ASG - The question which arises is, in such a case the dismissal by Supreme Court of SLP should be treated as a law laid down under article 141 of Constitution or otherwise - This issue was examined by Larger Bench of High Court of Bombay which also examined whether unutilised cenvat credit can be refunded on account of closure of manufacture activities of the factory - The Larger Bench has found that the law has not been laid down by Apex Court and the SLP was merely dismissed on account of concession made by ASG - Further, the Larger Bench of High Court of Bombay has held that no refund can be sanctioned under Section 11B, if the assessee is unable to utilise cenvat credit on account of closure of manufacturing activities - The ratio of said judgment of Larger Bench of High Court is binding and prevails and accordingly no refund of MODVAT/Cenvat credit can be sanctioned to the assessee - The law has now been laid down by constitutional bench of Supreme Court in case of Dilip Kumar and Company & Other 2018-TIOL-302-SC-CUS-CB and it is held that the fiscal laws must be interpreted as they are, without any intendment, regardless of the consequences - As per the ratio of this judgment also, Tribunal cannot sanction a refund against the explicit provisions: CESTAT

- Appeal allowed: HYDERABAD CESTAT

2020-TIOL-993-CESTAT-CHD

Noble Chlorochem Pvt Ltd Vs CCE & ST

CX - M/s. NAPL was set up for manufacturing Potassium Silicate w.e.f. 1.4.1987 and paying duty on clearance - The assessee, namely, M/s. NCPL was established in 1993 as a private limited company and taken a portion of factory on lease from M/s. NAPL - Initially, the assessee was engaged in manufacture of Aluminum Chloride and thereafter from 2001 started manufacturing Potassium Titanate - M/s. NCPL was availing the exemption Notfn 8/03-CE as amended from time to time - After crossing the exemption limit of Rs.1.5 crore, the assessee applied for registration on 29.10.2011 and thereafter the Range Officers visited the factory premises of assessee on 8.11.2011 and formed opinion that they had wrongly availed the benefit of SSI exemption during 2006-2012 and turnover of assessee should be clubbed with turnover of M/s. NAPL - The SCNs were issued to assessee to deny the benefit of SSI exemption - As the Board has already clarified that private limited companies are treated as separate, therefore, it is held that both the units are separate units - Similar issue has been examined by Tribunal in case of M/s. S.K.Sacks Pvt.Ltd. and others 2017-TIOL-1401-CESTAT-CHD - Since both are private limited companies, manufacturing different products, having separate electricity connection, having different raw material which is separately stored, creation of the units were within knowledge of department since long back and necessary statutory declarations were filed by assessee from time to time, the clearance of assessee and M/s. NAPL cannot be clubbed - If the clearances of assessee are to be clubbed with M/s. NAPL then the duty is required to be demanded from M/s. NAPL, which is not the case here - Therefore, assessee is entitled to avail the benefit of exemption Notfn 8/03-CE and no duty is sustainable against M/s. NCPL: CESTAT

- Appeals allowed: CHANDIGARH CESTAT

2020-TIOL-1170-HC-P&H-CUS

Cus - Seizure of 63 gold biscuits - Petition filed for grant of regular bail - Petitioner is in custody for the last 01 year and 08 months and has relied upon various zimni orders passed by the trial Court, starting from 20.03.2019 onwards, to show that no evidence is being recorded and the trial is being delayed for more than 01 year and 04 months.

Held : Without commenting anything on merits of the case, considering the facts and circumstances of the case and in view of the fact that main accused has been convicted for a period of three years only and also considering the fact that the petitioner is in custody for the last 01 year and 08 months and the trial is not proceeding further in view of various zimni orders, petition is allowed and the petitioner is directed to be released on regular bail subject to furnishing his bail/surety bonds to the satisfaction of the trial Court/Illaqa Magistrate/Duty Magistrate, concerned: High Court

- Petition allowed: PUNJAB AND HARYANA HIGH COURT

2020-TIOL-1164-HC-DEL-NDPS

Amani Fidel Chris Vs NCB

NDPS - The present appeal is directed against the judgment dated 28.07.2015 passed by the Special Judge whereby the appellant was convicted for the offence under Section 21(c) of the NDPS Act and was sentenced to undergo RI for 10 years and fine of Rs.1 lac in default whereof to undergo simple imprisonment for 6 months - It was further directed that after completion of the sentence, the convict be deported to his country.

Held: Issue to be considered is whether the procedure specified under the Standing Orders 1/88 dated 15.03.1988 issued by the Narcotics Control Bureau can be flouted - A combined reading of paras of the Standing Orders would show that where more than one container/package is found, the respondent is required to draw a sample from each of the individual container/package and test each of the sample with the field testing kit - It is further provided that if the container/packages are identical in shape, size and weight then lots of 10 or 40 containers/packages may be prepared and thereafter representative samples from each container/package in a particular lot are to be drawn, mixed and sent for testing - Mixing of the contents of container/package (in one lot) and then drawing the representative samples is not permissible under the Standing Orders and rightly so since such a sample would cease to be a representative sample of the corresponding container/package - In the present case, four packets containing suspicious powdery substance were found concealed in a stroller bag and on testing with the field testing kit , the powder in each packet tested positive for heroin - The I.O., without weighing the contents of each individual packet, mixed the powder from all the 4 packets in one polythene bag and then drew the sample from the mixture - In the opinion of this court, the respondent ought to have adopted the procedure outlined in Para 2.4 of the Standing Order 1/89 [or para 1.7(a) of Standing Order 1/88] by drawing samples (in duplicate) from each of the 4 packets separately and then sending the samples for testing - even if the four packets were to be considered as one lot, even then the contents of all the four packets ought not to have been mixed with each other - Instead, in terms of Para 2.8 [or para 1.7(e) of Standing Order 1/88], representative samples (in duplicate) from each individual packet ought to have been taken - Once representative samples were drawn from each individual packet, then such representative samples were to be mixed together to make a composite whole, out of which a further sample was to be drawn as a representative sample of this "lot of four packets" - The Standing Order nowhere provides that the contents of all the containers/packages are to be mixed, which has been done in the present case - Looking at the issue from the aspect of Section 52A of NDPS Act, it is seen that sub-section (2)(c) provides a procedure to be followed by the I.O. where an application is required to be filed before the Magistrate for the purpose of allowing to draw the samples from the seized substance - In the opinion of this court, the procedure adopted by the respondent in the present case for drawing samples neither conforms to the procedure prescribed under Section 52A of NDPS Act nor under the Standing Orders - respondent neither filed any application before the Magistrate for drawing the samples under his supervision nor followed the procedure of drawing a representative sample outlined in paras 2.4 or 2.5 read with 2.8 of the Standing Order 1/89 - Resultantly, court is of the view that the samples sent to the CRCL were not the representative samples - Besides, by mixing the contents of all the 4 packets before drawing any sample, not only the sanctity of the case property in the individual packet was lost but also the evidence as to how much each individual packet weighed - Bench is of the considered view that the prosecution has failed to prove its case against the appellant beyond reasonable doubt - Consecutively, the appeal succeeds and the appellant is acquitted: High Court [para 15 to 20, 29, 32, 33, 36]

- Appeal allowed: DELHI HIGH COURT

2020-TIOL-991-CESTAT-BANG

CC Vs Mohan Raman

Cus - Valuation - Revenue's application for rectification of mistake and restoration of appeal (wrongly allowed to be withdrawn on basis of monetary limit) was allowed and matter heard - Original adjudicating authority has simply rejected the value under Rule 12 of Customs Valuation Rules, 2007 but has not given any reasons for not proceeding sequentially as per Customs Valuation Rules, 2007 and particularly as to why the contemporaneous values as submitted by the appellant importer was rejected - Bench finds that Commissioner (A) has found that the invoice mentions the vehicle name, chassis number, engine number, model number etc., therefore, the rejection of the invoice without proper basis is incorrect - value arrived at by the authorities is, therefore, not justified - Insofar as the issue of violation of the condition that the vehicle was to be in the possession of importer for a period of one year, the importer has accepted that he has violated the provisions and for which reason, the vehicle was seized and confiscated - however, the same was released on payment of fine in lieu of confiscation - Once, the vehicle is allowed to be released on payment of fine in lieu of confiscation, the violations, if any, has been atoned - No merit in the Miscellaneous Application filed by the Revenue, hence same is rejected: CESTAT [para 5, 6]

- Application rejected: BANGALORE CESTAT

2020-TIOL-990-CESTAT-BANG

CC Vs Koushik Cargo Pvt Ltd

Cus - The CHA filed an application for renewal of licence - A SCN proposing for refusal to renew the licence in terms of Regulation 9(2) read with Regulation 5(e) of CBLR, 2013 was issued on the ground that penalty paid under Section 112(a) and (b) of Customs Act attained finality after withdrawal of appeal by CHA filed before the High Court of Karnataka and by resorting to Regulation 5(e) which is a bar on issuing a new licence on account of any misconduct on the part of CHA - Same was rejected - When there was no evidence against CHA for his involvement in undervaluation, then his licence is not liable for revocation and it was rightly decided by Commissioner while dropping the proceedings against them - After the decision of Tribunal upholding the penalty of Rs.75,000/- imposed on CHA under Section 112(a) and (b) of Customs Act, the Department vide its letter dt. 23/12/2011 asked the CHA to pay the penalty amount of Rs.75,000/- which was subsequently paid by the CHA and his licence was renewed from time to time subject to the outcome of Department's appeal - Since the Department's appeal was dismissed by upholding the order of Commissioner dropping the proceedings against the CHA and the fact that CHA's licence was renewed from time to time hence the refusal to renew the licence in terms of Regulation 9(2) read with Regulation 5(e) of CBLR is not sustainable in law - Further, invocation of Regulation 5(e) of CBLR, 2013 is not legally tenable because the CHA's matter is governed by CHALR, 2004 which did not contain a provision corresponding to the provision made under Regulation 5(e) of CBLR - By following the ratio of decision in Prashun Jain 2018-TIOL-3671-CESTAT-DEL , the impugned order refusing to renew the licence of the CHA is not sustainable in law and therefore the impugned order is set aside by allowing the appeal of CHA: CESTAT

- Revenue's appeal dismissed: BANGALORE CESTAT