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I-T - Final orders are unsustainable where SCN or draft order as per Sec 144B are not issued: HC

I-T - Revenue cannot be held at fault for not considering an assessee's objections to re-assessment, where assessee fails to promptly raise its objections: HC

I-T - Once excess stock has been debited in P&L Account then unsold stock as on 31st March 2015 also forms part of closing stock which is to be valued as per method regularly adopted by assessee : ITAT

I-T - Reopeing of assessment and addition made is valid as assessee fails to prove the facts which are especially within his notice and knowledge and failed to discharge his onus : ITAT

I-T - Even if assessee has been consistently allowed deduction u/s 80IC, lower authorities can modify quantum of profits disclosed by assessee : ITAT

I-T - Agri land in rural area qualifies as capital asset - proceeds from its sale not taxable as capital gains: ITAT

GST - Petitioner is permitted to file once again, rectified TRAN-1 Form electronically or manually: HC

Cus - Refund of IGST - Inaction on the part of the department to dispose of claim filed in March 2021 - Orders to be passed within six weeks: HC

ST - Payment of tax under reverse charge by utilising CENVAT - Explanation added to Rule 3(4)(e) of the CCR, 2004, disallowing such utilisation is w.e.f., 1.7.2012 only: HC

GST - Part recovery of charges from employees in respect of transport facility provided to them would NOT be treated as 'supply' - no tax payable: AAR

GST - Floor on rent - Electricity charges and Water charges paid by Applicant-Licensor as per meter reading and collected from recipient-Licensee at actuals on reimbursement basis is liable to GST: AAR

ST - When no positive evidence has been adduced in SCN to show any wilful suppression of fact on the part of appellant with an intent to evade payment of tax, demand cannot be sustained: CESTAT

Cus - The goods which were allowed to be redeemed were also found to be undeclared/misdeclared for which penalty is imposable under Section 114A of Customs Act, same is upheld: CESTAT

CX - Assessee is not required to pay any amount under Rule 6(3) in respect of LPG cleared under exemption under PDS, therefore, amount paid by them was liable to be refunded: CESTAT

CX - When cross-examination of witnesses is not allowed u/s 9D of CEA, 1944 then, those statements should not be relied upon for fastening duty/tax liabilities: CESTAT

2022-TIOL-31-HC-KOL-CUS

Cus - Refund of IGST - Petitioners are aggrieved by the inaction on the part of the respondents to dispose of their representation/reminder and submit that such non-disposal is a violation of Circular 8/2018-Cus - Counsel for respondent is not in a position to defend the inaction and is unaware about the status of the representations. Held: Petition is disposed by directing the respondents concerned to consider and dispose of the aforesaid representation dated March 23, 2021 in accordance with law by passing a reasoned and speaking order, after giving an opportunity of hearing to the petitioners or their authorised representative, within six weeks: High Court

- Petition disposed of: CALCUTTA HIGH COURT

ST/CX - Revenue is in appeal against order passed by CESTAT - Case of Revenue is that respondent - assessee has received intellectual property services, commissioning and installation services and maintenance and repair services from their parent company situated abroad and GTA services from M/s Transystem Logistics International (P) Ltd., Bengaluru; that they have utilized the credit availed on inputs, input services and capital goods for payment of service tax (under reverse charge mechanism) on the aforementioned services from April 2006 to August 2006 and which is not proper. Held: Explanation was added to Rule 3(4)(e) of the CCR, 2004, w.e.f., 1.7.2012, which reads - Explanation - CENVAT credit cannot be used for payment of service tax in respect of services where the person liable to pay tax is the service recipient. - Admittedly, the dispute herein relates to the period from April to August, 2006 and, therefore, the aforesaid explanation inserted to Rule 3(4)(e) w.e.f., 1.7.2012 is not applicable to the present case - In the case of Aravind Fashions Ltd. [ 2011-TIOL-748-HC-KAR-ST ] and Godavari Sugar Mills Ltd. [ 2015-TIOL-2491-HC-KAR-ST ], Coordinate Bench of this Court has allowed the credit and these two judgments have been applied by the CESTAT in reversing the finding of the adjudicating authority - Rajasthan High Court in case of Kansara Modlers Ltd. considering the identical question of law held that the Tribunal/CESTAT treating the assessee as output service provider is justiciable and this order has been affirmed by Supreme Court - Furthermore, although special leave petitions preferred by the Revenue against the decisions in M/s Aravind Fashions and Godavari Sugar Mills, supra, have been dismissed for low tax effect, Bench cannot subscribe to the arguments advanced by the Revenue in view of the fiction created under Section 68(2) of the Finance Act, 1994 read with Rules 2(1)(d) of the Service Tax Rules, 1994 and Rule 3(4)(e) of the Cenvat Credit Rules, 2004 - substantial questions of law are answered in favour of the assessee and against the Revenue: High Court [para 12, 18 to 20]

- Appeal dismissed: KARNATAKA HIGH COURT

ST - Appellant is engaged in business of construction of real estate properties for purpose of selling out same or for letting out on rent - They are availing the benefit of Cenvat credit under provisions of Cenvat Credit Rules, 2004 - SCN was issued by invoking extended period of limitation to dispute the availment of input service credit on the ground that the same has been used for construction of properties which do not attract output service tax - Appellant has informed the entire facts relating to availment of credit to Department vide their letters - Department was duly informed with regard to disclosure at the time of adjudication as well as in first appeal, which has not been dealt by both the authorities below - Authorities below have not disputed the fact of disclosures made by appellant - The Commissioner (Appeals) in impugned appeal order has merely reiterated the findings of original authority without specifically dealing with submissions made by appellant on limitation - No positive evidence has been adduced in SCN to show any wilful suppression of fact on the part of appellant with an intent to evade payment of tax - Entire period in dispute is covered under extended period of limitation, which is not available to Department in the absence of any element of fraud or wilful suppression and therefore, impugned demand cannot be sustained and hence, same is set aside in entirety: CESTAT

- Appeal allowed: KOLKATA CESTAT

Cus - Appellant is a Chartered Accountant who was issued with SCN proposing imposition of penalty under Section 112(a) & (b) of Customs Act, 1962 on the allegation of fabricating documents and wrongly verifying statements - Appellant had challenged the order before CESTAT and matter was remanded back for rehearing where penalty under Section 112(o) was directed to be re-determined after demand of duty upon DGFT decision is known - Imposition of penalty under Section 112 of Customs Act, 1962 is resultant outcome of such remand order that was re-adjudicated by Commissioner (Export-II) without appellant being noticed - Appellant filed an affidavit to the effect that no such SCN for hearing, leading to adjudication order, was served on him and despite direction, department failed to produce any proof of service on the summons on appellant during hearing of adjudication proceeding that had commenced in 2017 without any challenge by department to dropping of proceedings against appellant in first adjudication order - Principles of natural justice has not been followed by Commissioner (Export-II) - Impugned order imposing penalty under Section 112 of Customs Act, 1962 is hereby set aside: CESTAT

- Appeal allowed: MUMBAI CESTAT

Cus - Appellant is not pursuing the issue of valuation and confiscation and only contesting the penalty imposed under Section 114A of Customs Act, 1962 - Appellant has been allowed to redeem the goods on payment of duty - He has later at the time of hearing of appeal opted to abandon the goods - This does not in any way absolve the allegations of misdeclarations confirmed and upheld by impugned order - Appellant imported prohibited goods which were absolutely confiscated - The goods which were allowed to be redeemed were also found to be undeclared/misdeclared for which penalty is imposable under Section 114A of Customs Act, 1962 - No grounds found to interfere with penalty imposed under Section 114A of Customs Act, 1962 - Impugned order is upheld: CESTAT

- Appeal dismissed: CHENNAI CESTAT

CX - The issue involved is, whether the assessee is required to pay/reverse the amount in terms of Rules 6(3) of Cenvat Credit Rules, 2004 in respect of input services attributed to LPG manufactured and cleared under PDS under exemption and amount which was paid/reversed is eligible for refund to the respondent - The identical issue only for the different period, i.e., April 2015-March 2016 came up before Tribunal and this Tribunal vide order dated 11.10.2021 dismissed the appeals filed by revenue and decided in favour of assessee - Therefore, following the same, appeals filed by revenue are not sustainable - Accordingly, impugned orders are upheld: CESTAT

- Appeals dismissed: AHMEDABAD CESTAT

CX - Case of appellants is that the O-I-O has confirmed baseless duty demand without considering evidences in terms of mandatory provisions of Section 9D of Central Excise Act, 1944 - O-I-O has not examined and allowed cross-examination of witnesses whose statements recorded in investigation are relied upon - Appellant had made specific request in their reply to SCN to allow cross examination of Panch witnesses and Shri Ravindra Tantia - It is settled position in law including the decision of Supreme Court in case of Andaman Timber Industries 2015-TIOL-255-SC-CX , that when cross-examination of witnesses is not allowed u/s 9D of Central Excise Act, 1944 then, those statements should not be relied upon for fastening duty/tax liabilities - Hence, cross examination of witness was mandatory to arrive at correct fact finding in interest of justice - There is no other material placed on record by Revenue to justify excise duty demands - Therefore, duty demand is also not sustainable on this legal ground as well - When the duty demand is not sustained, consequential demands of interest and imposition of penalties on both the appellants would not survive and the same are set aside: CESTAT

- Appeals allowed: AHMEDABAD CESTAT