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I-T - Search assessment cannot be initiated based on any document recovered during search operation but which has not been conclusively linked to the assessee : HC

I-T - Assessment order cannot be sustained where it is passed without granting opportunity of personal hearing to the assessee: HC

I-T - Re-assessment order merits being quashed where assessee's reply to SCN not considered: HC

I-T - Notice or order passed in respect of an entity which has ceased to exist due to its amalgamation with another entity, is invalid : HC

I-T - Power of revision under Section 263 cannot be exercised based on surmises alone & where AO is found to have made adequate enquiry into issues involved: ITAT

I-T - While assuming jurisdiction u/s. 263, it is mandatory for Pr. CIT to state reasons for considering assessment order as erroneous in so far as prejudicial to interest of revenue: ITAT

I-T - If there is no evidence against someone being an entry provider, it cannot be assumed that he managed to route money from creditors of assessee: ITAT

GST - Puff insulated ice boxes (used by fishermen) are classifiable under CTH 3923 and attract tax @18%: AAR

GST - Rice cannot be treated as an 'agricultural produce' - Commission agent services for sale or purchase of rice, branded or unbranded, is not exempted - chargeable to tax @18%: AAR

GST - Accommodation service provided by applicant is exempted as the declared tariff of a unit of accommodation is below one thousand rupees, however, supply of food attracts tax @ 5%: AAR

Cus - Any assessment including self-assessment needs to be appealed against and in absence of such an appeal and consequential re-assessment, no refund can be sanctioned:CESTAT

ST - When service tax is paid by mistake, the claim for refund cannot be barred by limitation: CESTAT

CX - Appellant has complied with all provisions of Rule 6 of CCR, 2004, entire Cenvat credit of appellant stood reversed and adjudicated vide O-I-O which had attained finality as no appeal against the same had been preferred by Department: CESTAT

CX - The adjudicating authority has grossly violated the principles of natural justice by not providing documents as requested by appellant and also not giving effective hearing to appellants: CESTAT

2021-TIOL-301-AAR-GST

South Indian Federation Of Fishermen Societies

GST - Applicant is a Charitable Society and is engaged in undertaking various welfare activities for the poor fisherman - They provide the fishermen necessary fishing requisites at concessional rate - Fishing boats and Iceboxes are manufactured by the Applicant while Marine engines for fishing vessels are imported from outside India – Applicant has sought ruling on various issues and which are decided as under - 1. The marine engine and its spare parts supplied for fishing vessel (for use as part of the fishing vessel- CTH 8902) shall attract GST at the rate of 5% as per entry at Sl.No.252 of Schedule I of Notification No.01/2017-CTR - If it is supplied for use other than as parts of fishing vessels, GST shall be applicable at the rate of tax on such goods under the respective Customs Tariff Headings. 2. The provision of material and labour during warranty period without consideration (free of cost) does not come under the purview of supply in terms of Section 7 of the CGST Act, 2017 and no GST is leviable. 3. The activity of repair of fishing vessels is a composite supply involving supply of material/ spares which is ancillary to the predominant supply of services. The supply is appropriately classifiable under Heading 9987-998714 - Maintenance and repair of transport machinery and equipment and vide Sl.No.25(ii) of the Notification No. 11/2017-CTR, the supply is liable to GST at the rate 18%. 4. The puff insulated ice boxes are appropriately classifiable under CTH 39231030 and are liable to GST at the rate of 18% as per entry at Sl.No.108 of Schedule III of Notification No.01/2017-CTR. 5. Marine engines supplied for use as part of vessel [CTH 8906], which are used by the Department of Defence and other agencies for patrol, relief and rescue operations, will attract GST at the rate of 5%.

- Application disposed of: AAR

2021-TIOL-300-AAR-GST

Hindustan Agencies

GST - Applicant is a rice canvassing commission agent for Rice millers and traders - They are selling agricultural produce (rice) as per the Agricultural Produce Marketing Committee Act (APMC Act) of the State - Applicant contends that they are not raising any sale invoices other than commission bill for their services rendered - Applicant has sought a ruling on the following questions viz. Whether they are entitled to collect GST on Supply of services which pertains to selling of agricultural produce as per APMC Act? And whether there is any special case where the applicant has to collect GST on the Service provided (Branded and unbranded)?. Held : Rice is a product of milling process involving de-husking, steaming, de-browning, polishing, sorting etc. of paddy, which is a produce out of cultivation of plants - Criteria for being called an agricultural produce is not satisfied in the instant case, inasmuch as the processing is not done by the cultivator or the producer and the essential character of the produce has also undergone change - Rice cannot, therefore, be treated as agricultural produce in terms of para 2(d) of the Notification No. 12/2017-CT (Rate), and the commission agent services [SAC 9961] for sale or purchase of rice does not fall in the ambit of Sl. No. 54 of the Notification No. 12/2017-CT (Rate) and, therefore, not eligible for any exemption from levy of GST - Applicant is liable to collect CGST @ 9% and KGST @ 9% on supply of services relating to sale or purchase of rice - The applicant by canvassing for Branded and unbranded rice of millers and other traders is liable to pay CGST @ 9% and KGST @ 9% on the consideration received or receivable as commission from the rice miller or traders: AAR

- Application disposed of: AAR

2021-TIOL-299-AAR-GST

Healersark Resources Pvt Ltd

GST - Applicant is in the hospitality industry and is into the business of providing boarding, lodging facilities and such other services to M/s. Apollo Med Skills Limited (AMSL) (who in turn is into training youth in various Healthcare related vocational programmes as part of implementation of its Projects under Deen Dayal Upadhyay Grameen Kaushalya Yojana (DDU-GKY) by providing upskilling courses for Doctors, Nursing Professionals and skilling courses for Paramedical and Hospital Support Staff) - Applicant seeks to know the SAC as well as the GST rate for supply of such services; whether the service is a composite or mixed supply and whether the service is exempted under notification 12/2017-CTR. Held: GST SAC for the supply of service described in the application is 9963 - The services are neither a composite supply nor mixed supply but two separate supplies - Accommodation service (SAC 99632) provided by the applicant to AMSL is exempted vide Notification No. 12/2017-CTR as the declared tariff of a unit of accommodation is below one thousand rupees - However, the service provided by the applicant through supply of food (SAC 99633) attracts GST @ 5% as per Sl. No. 7(ii) of Notification 11/2017-CTR as amended: AAR

- Application disposed of: AAR

2021-TIOL-2349-HC-MAD-CUS

Laxmi Enterprises Vs JCC

Cus - The petitioner imported Tin Ingots which was purchased as high sea sale from MMTC Ltd. - It is stated that MMTC endorsed the Bills of lading in favour of petitioner and supplied the Certificate of Origin issued by Ministry of International Trade and Industry, Malaysia - Department stated that the actual Regional Value Content (RVC) of Tin Ingots was less than 35% and therefore Department contended that the Certificate of Origin furnished by petitioner was invalid and stated that the petitioner had wrongly claimed exemption from payment of Basic Customs Duty on imported goods - The facts as to whether a case was made out for suppression of facts or wilful mistatement with an intent to evade of payment of duty or not is a question of fact which has to be decided by hierarchy of authorities under Customs Act, 1962 - The petitioner has to establish the case for interference only before Appellate Commissioner under Section 128 of Customs Act, 1962 - Even if Appellate Commissioner does not accept the contention of petitioner, petitioner is not remedyless - The petitioner can recover the same from 2nd respondent in accordance with provisions of Sale of Goods Act, 1930 - The petitioner is given liberty to approach the Appellate Commissioner under Section 128 of Customs Act, 1962 within a period of 30 days: HC

- Writ petition dismissed: MADRAS HIGH COURT

2021-TIOL-845-CESTAT-DEL

Bridgestone India Pvt Ltd Vs CC & CGST

Cus - The appellant filed bills of entry and assessed duty including Anti-Dumping duty and paid the same - Thereafter, without challenging assessment of bills of entry, it filed refund claims - Relying on the judgment of Delhi High Court in Aman Medical Products 2009-TIOL-566-HC-DEL-CUS , matter was remanded to Original Authority by Tribunal in the first round of litigation directing the matter to be decided based on whether or not there was a ' lis ' between appellant and Revenue in these matters - Thereafter, said judgment has been set aside by Larger Bench of Supreme Court in case of ITC Limited 2019-TIOL-418-SC-CUS-LB - It has been categorically held that any assessment including self-assessment needs to be appealed against and in absence of such an appeal and consequential re-assessment, no refund can be sanctioned - The judgment of Supreme Court is binding on all judicial and quasi-judicial authorities and it is found that the Commissioner (Appeals) has, in impugned order, correctly relied upon this judgment and upheld the rejection of refunds - The impugned order is upheld: CESTAT

- Appeal rejected: DELHI CESTAT

2021-TIOL-844-CESTAT-MAD

Suraj Forwarders And Shipping Agencies Vs Pr.CGST & CE

ST - The appellant is aggrieved by rejection of refund claim - Service tax has been paid twice by appellant for the very same taxable value - Though the department agrees that the earlier payment made by challan dated 05.01.2015 on the service tax registration number of Tirupur Commissionerate is incorrect, they have neither adjusted the amount nor refunded the amount - Instead, vide letter dated 23.09.2016, appellant has been directed to make the payment once again - The appellant has again paid service tax mentioning the service tax registration of Ahmedabad Commissionerate on 26.09.2016 - It is clear that the department has collected service tax twice from appellant - This is not permissible under law - The High Court of Madras in case of 3E Infotech 2018-TIOL-1268-HC-MAD-ST had occasion to analyse the similar issue and held that when service tax is paid by mistake, the claim for refund cannot be barred by limitation - Rejection of refund on the ground of limitation cannot be justified: CESTAT

- Appeal allowed: CHENNAI CESTAT

2021-TIOL-843-CESTAT-KOL

India Steamship Vs CST

ST - The crux of issue relates to refund of service tax inadvertently paid by appellant on ship broking services availed from outside India under taxable category "Business Auxiliary Service" on a reverse charge basis - Since the refund claim is premised on the decision of Tribunal in Inter Ocean case 2012-TIOL-1824-CESTAT-DEL it is imperative to analyze the said decision where main point of dispute was classification of services of a ship broker - The Tribunal after analyzing the distinction between a Commission Agent vis-à-vis the ship broker came to the conclusion that ship broker services could not be equated with a Commission Agent and therefore, not covered by definition of "Business Auxiliary Services" - Although, an alternate contention with respect to export of ship broking services was advanced by appellant therein, the same was not even gone into since the main issue itself stood decided in favour of appellant therein - Further, an appeal filed by department against said decision before Supreme Court has also been rejected both on merits as well as on limitation - Therefore, the issue as regards non-taxability of ship broking services under taxable category "business auxiliary services" is no more res integra - No negative inference could be drawn merely from the fact that ship broker services does not appear in Section 66D of negative list introduced w.e.f. 1st July 2012 whereby all services were made taxable, unless exempted - Instead of discharging the burden of correctly classifying and establishing taxability of ship broking services under a particular taxable category by putting appellant to notice, Revenue has on the contrary sought to shift this burden upon appellant as the Notice did not even propose classification of ship broking services under any other taxable category - In the absence of any particular classification proposed in SCN, Appellate Commissioner could not have alleged that ship broking services were taxable as "Business Support Services" - Tribunal is inclined to follow the decision of Tribunal in Sainik Mining case 2019-TIOL-299-CESTAT-DEL , that classification of services under taxable category not alleged in SCN cannot be concluded to support the levy of tax. In so far as the aspect of unjust enrichment is concerned, appellant had adduced a Certificate from a Chartered Accountant certifying the non-availment of credit of service tax alleged to have been paid mistakenly under category "Business Auxiliary Services" as also regarding the incidence of tax having not been passed on to any other person - Moreover, as directed by Bench, appellant had also produced a copy of latest Audited Annual Report for Year 2020- 21 wherefrom it is evident that the claimed amount is being carried as a receivable in books of accounts of M/s. Chambal Fertilizer and Chemicals Limited, of which the appellant is a division - The impugned order cannot be sustained same is set aside: CESTAT

- Appeal allowed: KOLKATA CESTAT

2021-TIOL-842-CESTAT-KOL

Anmol Industries Ltd Vs CCGST & CE

CX - The only dispute is regarding compliance of provisions of Rule 6(3) of Cenvat Credit Rules, 2004 by appellant for the period 2012-13 to 2016-17 - Range Superintendent had provided a detailed report as to the compliance of Rule 6 of Cenvat Credit Rules, 2004 by appellant for the period covered in SCN and it has been held that the appellant was in compliance with procedures laid down and there has been excess reversal in years 2014-15 to 2016-17 by appellant - Appellant has complied with all the provisions of Rule 6 of Cenvat Credit Rules, 2004 and there is no further reversal required for period under dispute - We also note the fact that for 2012-13 and 2013-14, the entire Cenvat credit of appellant stood reversed and adjudicated vide O-I-O which had attained finality as no appeal against the same had been preferred by Department - Also for the period 2014-15, department had issued a spot memo for Rule 6 of Cenvat Credit Rules, 2004 wherein the SCN has been issued much after the expiry of normal period of limitation - There is no ground on which the demand can be raised by invoking extended period of limitation as all the documents were at disposal of Department since 2015 itself and hence the entire demand also fails on the ground of limitation - Demand of Cenvat credit cannot be sustained both on merits and on limitation and is accordingly set aside - Penalty and interest are also not sustainable: CESTAT

- Appeal allowed: KOLKATA CESTAT

2021-TIOL-841-CESTAT-AHM

Rajeshwar Prasad R Dubey Vs CCE & ST

CX - Appeals are directed against impugned order whereby Cenvat Credit was disallowed against M/s. Metal Link Alloys Ltd. on the ground that they have taken Cenvat Credit on the bills of entry of imported goods without receipt of goods - Penalties were imposed under Rule 26 of Central Excise Rules, 2002 - On behalf of Shri. Rajeshwar Prasad R Dube, Shri. J.C. Patel regarding the hearing before adjudicating authority submits that on dates of hearing there were some difficulties with appellant and he has sought for adjournment as due to some special occasion and his illness he could not attend the personal hearing, however, adjudicating authority without giving further opportunity passed the ex-parte order - The relied upon documents have not been provided to appellant nor records seized from appellant have been returned to them despite the request made by appellant by letter dated 24.01.2011, thereafter, almost after 8 years, impugned order was issued - The appellant also vide letter dated 21.10.2010 addressed to adjudicating authority informed that they were served with bare copy of SCN and none of the relied upon documents were supplied - They have further informed vide letter dated 07.10.2010 for supplying rest of the documents, however, the documents were not provided - Subsequently, without supplying relied upon documents, impugned order was passed - The adjudicating authority has grossly violated the principles of natural justice by not providing documents as requested by appellant and also not giving the effective hearing to appellants, therefore, without going into other details of adjudication order, principles of natural justice which is the foremost requirement for any adjudication, needs to be followed - Accordingly, matter is remanded to adjudicating authority to comply with the principles of natural justice and to pass a de novo adjudication order: CESTAT

- Matter remanded: AHMEDABAD CESTAT