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I-T - Re-assessment is not tenable if mandatory approval u/s 151 is not obtained & where reasons recorded by AO are not final: HC

I-T - Where on consideration of material on record, one view conclusively is taken by AO, it is not be open to re-open assessment based on same material so as to take another view: HC

I-T - Re-assessment is unsustainable if based on change of opinion & where assessee makes full & true disclosure of relevant facts necessary for assessment: HC

I-T - Re-opening of assessment is unsustainable when there is no tangible material available on record to conclude that income had escaped assessment : HC

I-T - Issue of violating Sec 13 when building contract work is awarded to Managing Trustee and assessee's right to exemption u/s 11, needs to be remanded as there has been no discussion on such aspects, in order passed by lower authorities : HC

Cus - There is no need to challenge the assessment of bill of entry as Section 9A(2)(b) itself has provision for refund in case of Anti-Dumping Duty : CESTAT

ST - Though credit is not available as Input Tax Credit under GST law, credit under erstwhile Cenvat Credit Rules is eligible to assessee - Such credit has to be processed under Section 142(3) of GST Act, 2017 and refunded in cash to assessee : CESTAT

CX - Accounting practice adopted by appellant allows to avail credit only after making payments to vendors which has made it impossible to carry forward the credit as set out in GST law, when credit is eligible, same cannot be denied by stating procedural requirements : CESTAT

2021-TIOL-2323-HC-P&H-GST

Aarcity Builders Pvt Ltd Vs UoI

GST - Petitioners have complained that their applications for revocation of cancellation of registration are not being considered/rejected on the ground that they have not been made within the time prescribed under Section 30 of CGST Act, 2017 - GST being a new Act, taxpayers were not familiar with the manner of service of notice by e-mail or making available at portal in comparison to earlier regime where manual service of notice was provided - Realizing the difficulties owing to aforesaid facts in implementing Section 30 by way of aforesaid order, proviso to Section 30 of CGST Act, 2017 was inserted - As a result, a registered person against whom order was passed under Section 29 upto 31.03.2019 was allowed to file application for revocation of cancellation of registration under Section 30 upto 22.07.2019 - It must be mentioned that around this time the country was affected by Corona virus pandemic and ultimately the department issued Notfn 34/202 1, whereby in modification of earlier notifications, Government on recommendations of council notified that, where a registration has been cancelled and the time limit for making application for revocation of registration falls during the period 01.03.2020 to 31.08.2020, the time limit for making application shall be extended upto 30th day of September 2021 - Petitioner contends that from the conjoint reading of notifications, they were entitled for extended period of limitation and thus could file application under Section 30 of the Act for revocation of cancellation of registration upto 30th day of September 2021 - The interpretation sought to be placed by respondents is unduly restricted - It cannot be lost site of that this notification was issued in view of Covid pandemic, wherein even the Supreme Court had passed a blanket order of extending the period of limitation - Once the petitioners had already been granted benefit of the notifications dated 23.04.2019, dated 25.06.2020 and dated 29.08.2021, the time limit for making such application should have extended up to the 30th day of September, 2021 - It is directed that in case these petitioners move an application for revocation of cancellation within a period of 30 days, same would be deemed to be within limitation and would have to be decided in accordance with law on merits: HC

- Writ petitions allowed: PUNJAB AND HARYANA HIGH COURT

2021-TIOL-829-CESTAT-AHM

Apollo Tyres Ltd Vs CC

Cus - The adjudicating authority rejected the claim of refund filed by appellant on the ground that they have not challenged the assessment of bill of entry - This is not the charge made in SCN, therefore, order of adjudicating authority has travelled beyond the scope of SCN, for this reason itself the order is not sustainable - Similarly, Commissioner (Appeals) held the refund claim as time bar, again there is no charge of refund being time bar in SCN, therefore, Commissioner (Appeals) also travelled beyond the scope of SCN - There is no need to challenge the assessment as Section 9A(2)(b) itself has provision for refund in case of ADD - As regard the ground of rejection made by Commissioner (Appeals) of time bar, refund was filed by appellant on 27.10.2016 and Notification reducing the rate of ADD was issued on 29.01.2016 - It cannot be expected from appellant to claim refund before issuance of Notification No. 4/2016-Cus., therefore, refund claim is well within the time, same was wrongly held time bar by Commissioner (Appeals) - It is also to be noted that at other Customs Port, i.e., Chennai and Cochin, the very same department has sanctioned the refund without alleging all these points raised in present case - Accordingly, appellant is entitled for refund - Since the lower authority have not examined the factual aspect of refund, same needs to be processed by verifying the documents - Accordingly, matter remanded to adjudicating authority to process the refund in accordance with law: CESTAT

- Matter remanded: AHMEDABAD CESTAT

2021-TIOL-828-CESTAT-MAD

Circor Flow technologies India Pvt Ltd Vs Pr.CGST & CE

ST - The assessee is engaged in manufacture of valves - After introduction of GST w.e.f. 1.7.2017, as assessee could not avail cenvat credit, they filed an application for refund of amount of which they are eligible for credit - The refund claim was rejected by adjudicating authority stating that the tax has been voluntarily paid and that no credit is eligible in GST regime - There is no allegation that credit is not eligible to assessee - It is merely stated that tax has been paid voluntarily and therefore credit is not available under GST regime - Though credit is not available as Input Tax Credit under GST law, credit under erstwhile Cenvat Credit Rules is eligible to assessee - Such credit has to be processed under Section 142 (3) of CGST Act, 2017 and refunded in cash to the assessee - The rejection of refund claim cannot be justified - Impugned order is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT

2021-TIOL-827-CESTAT-MAD

Bharat Heavy Electricals Ltd Vs CGST & CE

CX - Appellant filed an application for refund of credit - After due process of law, original authority rejected the claim stating that they ought to have taken the credit within 90 days of appointed day and submit a declaration electronically informing GST TRAN-1 in accordance with Rule 117 of CGST Rules, 2017 - There is no allegation raised by department that appellant is not eligible to avail credit of duties/taxes paid on inputs/input services - It is explained by appellant that they are able to avail credit only after they make the full payment to vendors - They have cleared payments to vendors of impugned invoices during the period from 5.7.2017 to 4.10.2017 - The provisions of CENVAT Credit Rules, as it stood during disputed period, allowed the appellant to avail credit within a period of one year - They could not avail the credit only because of introduction of GST law by which the CENVAT account has ceased to exist - There was also a cut-off date for filing TRAN-1 return for carry forward of eligible credit - The accounting practice adopted by appellant allows to avail credit only after making payments to the vendors which has made it impossible to carry forward the credit as set out in the GST law - When the credit is eligible, the same cannot be denied by stating procedural requirements - In Pujan Buliders, Engineers and Contractors 2021-TIOL-101-CESTAT-AHM , Tribunal allowed the refund even though initially the credit was carried forward to TRAN-1 and later reversed, after which the claim for refund was filed - The Tribunal vide Final Order in Terex India Pvt. Ltd. 2021-TIOL-696-CESTAT-MAD had occasion to analyse an issue of eligibility of credit and refund post-GST regime - The rejection of refund claim cannot be justified: CESTAT

- Appeal allowed: CHENNAI CESTAT

2021-TIOL-826-CESTAT-DEL

Jovex International Vs CCT

CX - The issue involved is for grant of interest under Section 35FF of Central Excise Act, 1944 from the date of deposit till the date of refund - The applicable section for grant of interest is Section 35FF ibid, which provides for grant of interest on the amount refundable pursuant to order of Appellate Court - It is further provided in this section that interest should be granted from date of deposit till the date of refund without any discrimination - In the case of Parle Agro (P) Ltd. 2021-TIOL-306-CESTAT-ALL , interest on pre-deposit have been enhanced from 6% to 12%, following the ruling of Apex Court in Sandvik Asia Ltd. 2006-TIOL-07-SC-IT - Thus, the Adjudicating Authority is directed to grant interest @ 12% per annum from the date of deposit till the date of refund - Such interest should be granted within a period of 45 days: CESTAT

- Appeal allowed: DELHI CESTAT