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I-T - Provisions of Sec 153A do not enable AO to frame assessment in an arbitrary manner, without nexus or relation to material seized in course of search operations : HC

I-T - Finance charges usually debited by bank directly to account of account holder cannot be construed as been incurred only towards specific project: HC

I-T - Surplus as per shareholders account should be credited with surplus in policy holders account for determining profit u/s 44, in case of life insurance business: HC

I-T - Liability to deduct tax u/s 194C would arise only if payment of land acquisition was made towards service charges by assessee which attracts tax liability: HC

I-T - Notice issued u/s 153C without jurisdiction, renders all further proceedings as void ab initio: HC

I-T - Writ jurisdiction cannot be availed where assessee also has appellate remedy available: HC

Cus - Enhancement of value not sustainable where based solely on figures mentioned in SCN & where such figures are not established as pertaining to contemporaneous import of similar goods: CESTAT

Cus - Jurisdiction of DRI - Apex Court's judgment in M/s Canon India does not apply to live consignments seized & where duty demand is not yet raised: CESTAT

2021-TIOL-694-CESTAT-AHM

H Kant And Company Vs CCE & ST

ST - The issue at hand is whether the service provided by the assessee-company qualifies as Repair & Maintenance or Commercial or Industrial Construction Service or Works Contract Service - Accordingly, it is to be decided further as to whether or not the assessee is entitled to abatement. Held - It is fit case for remand so as to determine the actual nature of the service provided by the assessee & accordingly determine its appropriate classification: CESTAT

- Matter remanded: AHMEDABAD CESTAT

2021-TIOL-693-CESTAT-DEL

Chittor Polyfab Ltd Vs CCE & CGST

CX - The appellant is engaged in manufacture of HDPE/PP Woven fabrics and sacks - During audit, it was noticed that the appellant has wrongly availed the CENVAT Credit on Service Tax on outward freight during the period April, 2015 to June, 2017 in contravention of Rule 2(l) and Rule 3 of CCR, 2004 - Accordingly, vide SCN, CENVAT Credit of aforesaid amount was proposed to be disallowed and recovered from appellant along with interest and imposition of penalty was also proposed - Appellant was clearing goods after receiving purchase orders from customers specifically stating the sales to be made on FOR destination basis with a contract therein for the same - The outward freight is held to be eligible input for availing the credit in terms of Rule 3 of CENVAT Credit Rules - Otherwise also the decision of Apex Court in case of Roofit Industries Ltd. 2015-TIOL-87-SC-CX is applicable to the facts of the present case - The Circular No. 1065/4/2018-CX also cannot be made retrospectively applicable to the period in question - At the relevant time, Circular No. 988/12/2014 CX /Circular No. 97/8/2007-CX were applicable - It has been time and again been settled by Supreme Court that the beneficial circular cannot be retrospectively withdrawn - Consequently, benefit of said circular shall continue to be available to the appellant - Accordingly, Adjudicating Authority has wrongly disallowed the CENVAT Credit - Credit has been shown in ER-1 returns filed by appellant from time to time - Neither suppression nor misrepresentation of facts can be alleged against the appellant - The alleged suppression of facts on the part of appellant that too with an intent to evade payment of duty is therefore not sustainable - It is accordingly held that the Department was not entitled to invoke extended period of limitation - The order under challenge is set aside: CESTAT

- Appeal allowed: DELHI CESTAT

2021-TIOL-692-CESTAT-MAD

Baburam Premchand Vs CC

Cus - The assessee-company imported a consignment of goods & declared the same as Tin Free Sheets (Secondary/Defective TFSSD) - The DRI claimed that in such consignment, Tin Sheets (secondary/defective Tin Sheets) were concealed - It was also alleged that the assessee imported Tin Coils mis-declaring it as Tin Free Sheets and that these goods are lying in the factory - The DRI conducted search at the assessee's premises - On verification of stock available in the factory premises, Tin Coils/Sheets totally weighting 65.4 MTs were found - A partner in the assessee-company stated that such goods were part of a earlier consignments of 100MTs of Tin Coils, which they imported mis-declaring the same in the consignment of 167 Mts of TFSSD coils vide two bills of entry - Hence goods goods weighing 68.4 MTs of Tin Sheets/Coils were seized, on grounds that they were imported by mis-declaring the description, quality, quantity and value and in violation of provisions of Exim Policy which stipulated that secondary/defective Tin sheets has to be accompanied by pre-shipment certificate - On examination, it was found that the entire consignment was Tin Sheets of width of 500 mm, whereas, the goods were declared by the assessee as Tin Free Sheets (TFSSD) and the value declared was USD 200/MT as against the prevalent value of USD 465/MT applicable to Tin Sheets of width above 600 mm. The goods weighing 48.851 MTs was also seized under a Mahazar, dated 25.06.2002 - Samples were drawn from the goods lying at factory and the live consignment and sent for chemical analysis - Later the National Metallurgical Laboratory certified that the goods seized from the godown and the live consignment were Tin Sheets of width above 600 mm - It appeared that the appellant had declared the cargo as (Tin Free Sheets) TFSSD to evade payment of Customs duty. As the goods were mis-declared the value declared for imports by appellant was rejected - As contemporaneous imports of identical goods were not available the value could not be arrived under Rule 5 of Customs Valuation Rules, 1998 - Thereafter, SCN was issued by the DRI u/s 124 of the Customs Act, 1962 to classify the goods of 100 MTs covered under bill of entry, as Tin Sheets/Coils falling under CTH 721090 and raising duty demand with interest & penalty. Held - The Department admittedly could not furnish details of identical imports available for re-determination of duty & so proceeded to enhance value of goods based on contemporaneous price of similar goods imported - Moreover, even after remand and repeated requests from the assessee, the Department was unable to furnish details regarding bills of entry which are contemporaneous imports of similar goods - It is not explained by the Department how these goods are similar or akin to the goods imported by the assessee - When the Department themselves say that the goods are not identical but only similar they should put forward evidence to show the nature and description of the goods imported vide these bills of entry - It is iniquity on part of the Department to rely on figures which do not pertain to contemporaneous import of similar goods & without supplying supporting documents to the assessee - The Department must be able to explain source of figures obtained by it to re-determine duty, but was unable to do so despite several rounds of litigation - Hence enhancement of value of goods merely on the basis of figures given in the table of the Show-cause notice has no legal basis & must be set aside - Consequently, the order of confiscation of goods, imposition of redemption fine & penalties is unsustainable: CESTAT Held - Jurisdiction of DRI - The assessee claimed that as per the verdict of the Supreme Court in M/s Canon India the officers of the DRI are not proper officers to issue SCN demanding duty u/s 28(4) of the Customs Act, 1962 - In the present case, the DRI issued SCN proposing to re-classify the goods and re-assess duty - The order of confiscation is only in consequence of such re-assessment - Hence to such extent, the SCN is hit by the principles laid down by the Apex Court - Regarding the live consignment seized by the DRI, the demand has not yet been contemplated u/s 28 of Customs Act - Hence it is not hit by the principle laid down by the Apex Court: CESTAT

- Assessee's appeal allowed: CHENNAI CESTAT