I-T - Reassessment proceeding initiated u/s 148 that stands substituted after enactment of Finance Act, 2021, i.e., on or after 01.04.2021, is invalid : HC

I-T - Assessment order merits being quashed where it is based on statements taken from certain persons & where assessee is not permitted to cross examine deponents of such statements: HC

I-T - Assessee given insufficient time of 2 days to file reply to SCN; assessment order quashed: HC

I-T - Once competent authority has given certificate that housing project has been completed on a certain date, Revenue cannot deny deduction u/s 80IB(10), alleging that project is incomplete : ITAT

I-T - Immunity can be granted from disallowance of expenses on account of non/short deduction of taxes when assessee/payer furnishes certificate in prescribed form : ITAT

I-T - Penalty levied u/s 271(1)(c) is not valid when inappropriate words in notice are not struck off and notice does not specify the limb of the provisions under which penalty has been initiated : ITAT

I-T - For purposes of sec. 69A, where assessee discloses primary facts, burden shifts on Revenue to unprove them : ITAT

I-T - No addition can be made towards deemed ALV of unsold flats held by assessee as stock-in-trade of its business of a builder and developer : ITAT

I-T - Deeming provisions of sec. 56(2)(vii) cannot be invoked on normal business transaction of issuance of shares : ITAT

ST - If the payment made by a mistaken notion does not come within the realm of 'duty', Section 11B of the Act, 1944 would not be applicable: HC

ST - When there is a lack of authority to collect such service tax not liable to be paid, it would not give Department the authority to retain the amount: HC

ST - Pre-requisite of pre-deposit paid but appeal filed before wrong forum by mistake - Court exercises extraordinary power and condones delay of 815 days: HC

CX - Factual position as to whether petitioner is a manufacturer or fabricator has to be determined during cross-examination of department witness - Order of dismissal of discharge petition by trial Court does not suffer from any perversity: HC

GST - SCN for cancellation of registration is not issued in the prescribed template REG-17 - Order set aside: HC

GST - For fraud committed by selling dealer, which resulted in cancellation of their registration, there cannot be an automatic cancellation of registration of purchasing dealer: HC

CX - Where the sale of goods has taken place through C & F Agent, premises of same C & F Agent is the place of removal in terms of definition of 'place of removal', appellant is entitled for Cenvat Credit : CESTAT

Cus - The goods 'screw/drag conveyors and bucket elevators'being part of feed mill machinery used by appellant for manufacture of goods, are rightly classifiable under Tariff Item 8437 90 90 of Customs Tariff Act, 1975 : CESTAT

2021-TIOL-1966-HC-MAD-GST

Suresh Trading Corporation Vs Asstt. Commissioner (Circle) of SGST

GST - Petitioner's GST Certificate was cancelled by an order dated 30.10.2019 primarily on the ground that the writ petitioner has failed to file monthly returns for six months, hence the present petition.

Held: Impugned order is set aside solely on the ground that SCN which preceded the same has not been issued in the prescribed template i.e. REG-17 under Rule 22(1) of TN-GST Rules, as it does not mention the date and time of personal hearing - Respondent shall issue SCN afresh (if deemed necessary), in prescribed template/format inter alia setting out the date, time and venue for personal hearing and carry the same to its logical end as expeditiously as possible and in any event, within six weeks - Petition disposed of: High Court [para 13]

- Petition disposed of: MADRAS HIGH COURT

2021-TIOL-1965-HC-ORISSA-GST

Bright Star Plastic Industries Vs Addl.CST

GST - Petitioner's application for revocation of cancellation of his registration was rejected by lower authorities, hence the present petition - Ground taken by the proper officer is that: "you have claimed ITC (Input Tax Credit) of Rs.2,04,650,06 against fake invoices issued by non-existent supplier".

Held: Court finds merit in the contention that for the fraud committed by the selling dealer, which resulted in cancellation of a selling dealer's registration, there cannot be an automatic cancellation of the registration of the purchasing dealer - None of the three circumstances outlined in Clauses (a), (b) & (c) are attracted in the present case - Consequently, Rule 21 of the OGST Rules cannot be invoked by the Department, in circumstances such as the present, to cancel the registration of the purchasing dealer - To attribute fraud to the Petitioner, as a purchasing dealer, the Department would have to satisfy a high threshold of showing that the purchaser indulged in the transactions with the full knowledge that the selling dealer was non-existent - The Department would have to show that somehow the purchasing dealer and selling dealer acted in connivance to defraud the revenue - This threshold has not been made in the present case - In other words, the Department has failed to show that the Petitioner as a purchasing dealer deliberately availed of the ITC in respect of the transactions with an entity knowing that such an entity was not in existence - Impugned orders are set aside - Department is directed to restore the Petitioner's registration forthwith by issuing appropriate orders/directions not later than one week - Petitioner is permitted to file all the return which it could not file on account of the cancellation of the registration - Petition is allowed: High Court [para 15, 16, 19, 21]

- Petition allowed: ORISSA HIGH COURT

2021-TIOL-1969-HC-KAR-ST

Way2wealth Brokers Pvt Ltd Vs CCT

ST - Assessee was collecting Late Payment Charges, (LPC) from the customers for delay in payment of the amount beyond the stipulated time - The assessee paid service tax on the LPC inadvertently for the period April 2009 to March 2011 - However, as there was no mandate to pay service tax on LPC, the assessee stopped remitting service tax on this amount from 01.04.2011 - Pursuant to a clarificatory Circular dated 03.08.2011 clarifying that service tax need not be paid on LPC collected from stock brokers, the assessee filed a refund application for an amount of Rs.37,72,354/- being service tax inadvertently paid which was not due under the existing laws -SCN was issued and an order was passed by the adjudicating authority rejecting the claim for refund of service tax -Commissioner(A) remanded the claim for the period October 2010 to March 2011 to the Assistant Commissioner of Service Tax and rejecting the claim for the period April 2009 to September 2010 as hit by limitation -CESTAT upheld this order of Commissioner(A), hence the present appeal.

Held: Crux of the controversy mainly relates to the applicability of S.11B of the Act, 1944 to a refund claim made by the assessee relating to service tax paid on a mistaken notion on the LPC - What one has to see is whether the amount paid by the assessee under a mistaken notion was refundable - Mere payment made by the assessee will neither validate the nature of payment nor the nature of transaction - The same could not make it a service tax - When there is a lack of authority to collect such service tax not liable to be paid by the assessee, it would not give the Department the authority to retain the amount paid by the assessee, therefore, mere nomenclature would not be an embargo on the right of the petitioner to demand refund of payment made under a mistaken notion - If the payment made by a mistaken notion does not come within the realm of 'duty', Section 11B of the Act, 1944 would not be applicable - Commissioner of Service Tax (Appeals) has categorically held that the rejection of the claim by the adjudicating authority without considering the certification issued by the chartered accountant amounts to technical/procedural lapses which should not be a ground for rejection of refund - Period of limitation would not be applicable in the present case - Accordingly, the appeal deserves to be allowed setting aside the impugned order passed by the Tribunal and the authorities - It is clarified that the refund amount claimed shall not carry any interest -Appeal allowed: High Court [para 12, 14, 17, 18]

- Appeal allowed: KARNATAKA HIGH COURT

2021-TIOL-1968-HC-MAD-ST

Susee Auto Sales And Services Pvt Ltd Vs Asstt. Commissioner of GST & CE

ST - Observing that the Appellate Authority does not have power or jurisdiction to condone the delay of 815 days, in view of Section 85(3) of Finance Act, the appeal was dismissed - Petitioner is, therefore, constrained to file this Writ Petition, challenging the order in original, dated 30.08.2018.

Held: In view of the statutory limitation prescribed, the Appellate Authority cannot condone such a huge delay and, therefore, the reason stated by the Appellate Authority, in this regard, to that extent can be accepted - It is to be taken note of that, the petitioner had paid the pre-requisite deposit of 7.5% of demanded tax, in this context, though he made an attempt to file an appeal, but he had chosen the wrong Forum by mistake or by mis-conception of the Forum - In view of the said factual circumstances, Court feels that in such peculiar circumstances, the appeal filed by the petitioner can be entertained by the Appellate Authority - Court by exercising its extraordinary power under Article 226 of the Constitution of India, can very well condone the delay in filing the appeal before the Appellate Authority - There shall be a direction to the second respondent/Appellate Authority, to entertain the appeal filed by the petitioner as against the order-in-original and accordingly decide the said appeal on merits and in accordance with law - Petition disposed of: High Court [para 10, 12]

- Petition disposed of: MADRAS HIGH COURT

2021-TIOL-1967-HC-MAD-CX

Savera Industries Vs DCCE

CX - Accused have filed a petition under Section 245(2) of Cr.P.C, seeking for discharge on the ground that they do not come under the purview of Section 2(f) of the Central Exercise Act, 1944.

Held : Revision petitioners are tax evaders or not depends upon the fact that they are the manufacturer or fabricator and hence, the factual position has to be determined by the accused during the cross-examination of department witness and hence, the same cannot be determined at this stage - Therefore, the order of dismissal of discharge petition by trial Court does not suffer from any perversity and is confirmed - Criminal Revision Case is dismissed: High Court [para 11, 12]

- Petition dismissed: MADRAS HIGH COURT

2021-TIOL-635-CESTAT-AHM

Gujarat Insecticides Ltd Vs CCE & ST

CX - The issue involved is that, whether the appellant is entitle for Cenvat Credit in respect of C & F Services received by them for the sale of their goods - Where the sale of goods has taken place through C & F Agent, premises of same C & F Agent is the place of removal in terms of definition of 'place of removal' provided in Section 4(3)(c)(iii) of Central Excise Act, 1944 - Since the goods are cleared from factory of appellant and sold through C & F Agent, all the services even from factory gate up to the C & F Agent are used up to the place of removal therefore, C & F Agent service is admissible input service - There is no dispute that C & F Agent service is used up to the place of removal - C & F agent service provided by agents of principal manufacturer of goods and any goods stored by them after clearance from factory stored on behalf of principal only the place of removal under Section 4(3)(c)(iii) ibid, service of C & F Agent is within ambit of Rule 2(l) of Cenvat Credit Rules, 2004 - Accordingly, appellant is entitled for Cenvat Credit in respect of C & F Agent Service - The impugned orders are set aside: CESTAT

- Appeals alowed: AHMEDABAD CESTAT

2021-TIOL-634-CESTAT-MAD

Chareon Pokphand India Pvt Ltd Vs CC

Cus - The issue involved is with regard to classification of 'screw/drag conveyors and bucket elevators' imported by appellant - The appellant has described the nature of bucket elevators and conveyors imported by them and used in their milling factory - The pictures of said item are also furnished before - Diagrammatic representation of pelleting, drying and cooling system and the packing system is also furnished to explain how the bucket elevators and conveyors are used in milling factory in manufacturing activity - It is clear from bills of entry itself that the bucket elevators and drag conveyors are imported as parts of milling equipment - The department does not have a case that these imported goods were put to use in any other manner - The appellant contends that goods would merit classification under Heading 8437 of Customs Tariff Act, 1975 - The said Heading is for machinery used in milling industry - The contention of department is that as per HSN Explanatory Notes, Chapter Heading 8437 ibid excludes machines used in milling industry - Heading Notes in 8428 is the machines used for lifting, handling, loading or unloading in the nature of escalators and conveyors - The department is trying to classify the goods under parts of lifts and escalators normally used in building industry - The very same issue was analyzed by Tribunal in case of Annapurna Agronics Machinery Pvt. Ltd. 2018-TIOL-3986-CESTAT-CHD - The impugned goods imported for specific use in milling factory merits classification under Heading 8437 ibid - The impugned order is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT