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I-T - If Revenue Department has not monetarily burdened taxpayer for FEMA violation which could have qualified as excess of jurisdiction, then same does not call for writ interference: HC

I-T - If any deductor has already paid fee after intimation received u/s 200A, then deductor is not permitted to reopen said question unless he has made payment under protest: HC

I-T- Explanatory memorandum to Finance Act, 2021 proposing amendment in section 36(1)(va) as well as section 43B is applicable only from 01.04.2021, thus additions made u/s.36(1)(va) deserves to be deleted : ITAT

I-T- As there is no finding by AO suggesting that assessee has made investment out of undisclosed source for earning of gross receipts, and since gross receipt does not partake character of income, thus addition made by AO is to be deleted : ITAT

I-T - Disallowance of payment of PF & ESI contribution amount cannot be sustained where such payment is made before the due date of filing ITR : ITAT

GST - Egg is an agricultural produce - Services by way of transportation of 'Eggs' by rail from one place in India to another place is exempted: AAR

2021-TIOL-263-AAR-GST

Sas Cargo

GST - Applicant is in the business of freight services and also holds lease rights of space/containers in Indian Railways - Applicant has sought advance ruling in respect of the following questions  viz. (a) Whether eggs / hatcheries are classified as Agricultural Produces/ Products and are exempted as per Serial No. 20 of Notification No. 12/2017-Central Tax (Rate)? &  (b) Applicability of GST on Transportation Services by Rail on Eggs/hatcheries under GST Act?

Held: Eggs, including hatching eggs are obtained by rearing of chicken (Poultry Farming) directly - They are either meant for food or as raw material (hatching eggs) for further propagation, and as per definition clause 2(d) of notification 12/2017-CTR, Agricultural Produce is "any produce out of rearing of all life forms of animals, for food, fibre, fuel, raw material or other similar products, on which either no further processing is done or such processing is done as is usually done by a cultivator or producer which does not alter its essential characteristics but makes it marketable for primary market" - Thus fresh eggs in shell on which no further processing is done are covered under the definition of "Agricultural Produce" - Since the term 'agricultural produce' is clearly defined in the Notification one has to rely on the same rather than relying on the definitions mentioned in the erstwhile Finance Act, 1994 - As the applicant is involved in providing services of transportation of agricultural produces i.e. eggs, by rail from one place in India to another, those services are covered under the entry 20 of Notification No.12/2017-Central Tax (Rate) and hence such services are exempt by the said Notification from payment of taxes: AAR

- Application disposed of: AAR

2021-TIOL-2170-HC-AHM-CX

Pranatharthiharan Sreedharan Vs UoI

CX - This is a petition where challenge is made to the legality and validity of ex-parte order imposing personal penalty on petitioner without service of SCN and without service of notices of personal hearing - The SCN and the personal hearing notices have not been served upon petitioner - It has a reference of first SCN served upon company and therefore, it is assumed that the SCN and the personal hearing notices have been served upon petitioner also - Any penalty imposed personally on the person cannot be saddled, unless due opportunity is given - Neither the SCN was served upon petitioner nor was he served notice of personal hearing - SCN is of the year 2017 and petitioner was in service only till 2016 - Till he was in the service, no SCN had been issued and this aspect remains undisputed from the reply of respondent authority - More particularly, when the order impugned is duly served upon his personal address at Chennai and if that could be done, there was no earthly reason as to why at an earlier point of time, SCN and other notices of hearing could not have been served upon him - Again, there is nothing to indicate as to how this affixing at company premise should be construed as sufficient notice to the petitioner nor is it found on record from any document that he was made aware of SCN which led to the order impugned and therefore, merely because in reply to another SCN, he has been made aware also cannot furnish the ground to assume that he was aware of SCN, the order of which is impugned in this matter - Such assumption and presumption are absent in statute and they cannot furnish the basis to sustain the order of huge amount of personal penalty - So far as maintainability of petition is concerned, following the principle explained by Court in the case of M/s. Darshan Boardlams Ltd., it is held that the court should not decline to entertain this writ-application on the ground that the writ-applicants have a remedy of preferring an appeal before appellate tribunal under Section 35B of the Act - The impugned order is quashed and set aside - The Court has chosen not to enter into the merits of the matter and all contentions with regard to the merits are open for the parties to agitate: HC

- Writ application allowed: GUJARAT HIGH COURT

2021-TIOL-730-CESTAT-BANG

Traco Cable Company Ltd Vs CCE & C

CX - The appellant manufactures electric cables/ACSR conductors and supplies to M/s Kerala State Electricity Board (KSEB) as per contract which includes a price variation clause - They paid duties at the time of removal of goods - Subsequently, prices were enhanced retrospectively in view of the increase in cost of raw material - The differential duty in respect of such goods which were already cleared was paid by issuing supplementary invoices using Cenvat credit - A SCN was issued to appellant alleging that the supplementary invoices were raised and therefore, they are relatable to clearances already made during the previous months - The first question as to whether supplementary invoices relate to the date of original clearance or the date on which the supplementary invoice was raised has been decided by Supreme Court in Steel Authority of India 2019-TIOL-204-SC-CX-LB - Accordingly, interest under Section 11AB of Central Excise Act, 1944 needs to be paid by appellant on the differential amount of duty - On the second question of whether Cenvat credit can be utilized for payment of duty in view of proviso to Rule 3(4) of Cenvat Credit Rules, 2004, the High Court of Gujarat in Advance Surfactants India Ltd. 2017-TIOL-1538-HC-AHM-CX has held that this proviso is ultravires - No judgment of any other High Court or Supreme Court has been produced to show that a contrary view has been taken in respect of this proviso - Therefore, appellant was correct in utilizing Cenvat credit for payment of excise duty - As regards to penalty, appellant has not violated any provision of the Act or the Rules to attract penalty under Rule 25 of CER, 2002 - Appellant on its own had paid the differential duty on supplementary invoices which were raised: CESTAT

- Appeal partly allowed: BANGALORE CESTAT

2021-TIOL-729-CESTAT-BANG

Tata Consumer Products Ltd Vs CCT & CE

ST - The appellant filed a refund claim for the service tax paid by them for the period October 2016 to December 2016 in terms of Notfn 27/2012-CE (NT) - It is the case of appellant that they had exported goods during said period without payment of duty but they were also not in a position to use CENVAT credit of service tax liability under Rule 3 of CCR, 2004 which prompted them to file the refund application under Rule 5 of CCR, 2004 - Same was rejected by lower authorities - Keeping in view of the settled legal position in KVR Construction 2010-TIOL-980 -HC-KAR-ST and M/s DHL Express India Pvt. Ltd. 2021-TIOL-1830-HC-KAR-CUS , no justification found in the reasons adopted for rejection of refund claim by the lower authorities and hence the impugned order is not sustainable in the eyes of law - Therefore, the impugned order is set aside: CESTAT

- Appeal allowed: BANGALORE CESTAT

2021-TIOL-728-CESTAT-MAD

CC Vs Oswal Minerals Ltd

Cus - Revenue is in appeal against impugned order whereby the Commissioner (Appeals) directed the assessing authority for reassessment of Bill of Entry - The case of Revenue is that assessee should have appealed before Commissioner (Appeals) against the assessment of Bill of Entry whereas they have filed appeal against rejection of reassessment made by assessing authority - Assessee filed the appeal before Commissioner (Appeals) against rejection of reassessment request made by them before assessing authority - Therefore, the assessment was very much alive before Commissioner (Appeals) - There is no other remedy available for assessee except to file an appeal before Commissioner (Appeals) - Now the Revenue cannot challenge the direction of reassessment given by Commissioner - Therefore, on this score Revenue's appeal does not sustain - The assessing authority is directed to reassess the Bill of Entry as directed by Commissioner (Appeals) in impugned order: CESTAT

- Appeal dismissed: CHENNAI CESTAT