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I-T - Provisions of Sec 47(iv) are inapplicable on transaction of redemption of preference shares: HC

I-T - If on consideration of material on record a conclusive view is taken, then AO cannot take different view based on same material: HC

I-T - Offering income to tax under incorrect heading, while being under bona fide belief of its correctness, is no ground for imposing penalty for concealment of income: ITAT

I-T - Employees' contribution to PF & ESI cannot be disallowed where such payment is made before the due date for filing ITR : ITAT

I-T - No omission to make full & true disclosure of material facts; re-assessment untenable: ITAT

I-T - Amended provisions of Sections 36(1)(va) & 43B cannot be invoked retrospectively: ITAT

GST - Recovery of GST under reverse charge mechanism on the royalty and District Mineral Fund Contribution paid by petitioners to the State of Jharkhand is stayed: HC

GST - Option available was to request customer to issue credit note to neutralize the alleged excess payment of GST - Tax was paid on 20.12.2017 - Refund claim filed on 30.05.2020 clearly time barred: HC

ST - Revenue has erred in levying penalty under Section 78 of Finance Act, 1994 when there is neither deliberate evasion of duty nor is there any evasion per se, same is set aside: CESTAT

ST - Since there is inordinate delay of more than one year from the intimation received from SIPCOT, rejection of refund claim as time-barred is legal and proper: CESTAT

2022-TIOL-74-CESTAT-MAD

Sudarshan Cargo Pvt Ltd Vs CGST & CE

ST - SCN was issued alleging inter alia violation of Section 67 of Finance Act, 1994 r/w Rule 5 of Service Tax (Determination of Value) Rules, 2006, inasmuch as the appellant had collected ocean freight charges from their clients at a marked up value - For the earlier period covering 2003-04 to 2007-08, a SCN was issued proposing demand of Service Tax on differential amount - The present SCN was issued on 15.09.2014, which is clearly after invoking the larger period, alleging that appellant had suppressed facts in its ST-3 returns to justify the invocation of extended period of limitation - This is a bit strange in as much as it is not the case that Revenue was not aware since a similar Notice was issued for immediately preceding period - Appellant has mainly pleaded that it was an interpretational issue and therefore, no penalty was exigible - The Supreme Court in case of M/s. Intercontinental Consultants and Technocrats Pvt. Ltd. 2018-TIOL-76-SC-ST had dismissed the Revenue's appeal against the decision of Delhi High Court, wherein it was held that Rule 5 ibid. was ultra vires to Section 67 ibid - SCN had mainly alleged violation of Section 67 r/w Rule 5 ibid, which had finally been interpreted in favour of taxpayer by quashing Rule 5 ibid and therefore, appellant was correct in claiming that it was a bona fide interpretational error and no motive could be attached - Revenue has erred in levying penalty under Section 78 of Finance Act, 1994 when there is neither deliberate evasion of duty nor is there any evasion per se - Accordingly, the impugned order is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT

2022-TIOL-73-CESTAT-MAD

San Automotive Industries Pvt Ltd Vs CGST & CE

ST - Appellants filed the refund claim for an amount being the service tax collected by State Industries Promotion Corporation of Tamilnadu Ltd. (SIPCOT) on development charges paid to SIPCOT by them - As per Notification No. 41/2016-S.T. and in terms of Section 104 of Finance Act, 2017, service tax paid on development charges in respect of services provided by way of grant of long-term lease on industrial plots is eligible for refund - Such refund claim has to be filed within six months from the date when Finance Bill, 2017 receives the assent of President of India - The Bill received assent on 1.4.2017 - The claim then ought to have been filed on or before 30.9.2017 - The refund claim was filed by appellant only on 26.11.2018 - As it was filed beyond the prescribed time limit of six months, claim was rejected being time-barred - Observing that there is inordinate delay of more than one year from the intimation received from SIPCOT, rejection of refund claim as time-barred is legal and proper: CESTAT

- Appeal dismissed: CHENNAI CESTAT

2022-TIOL-72-CESTAT-MAD

Manda Ramu Vs CC

Cus - The gold was found concealed in jacket of Shri V. Sathyanarayana and was detected as he was passing through door frame metal detector at the Railway Station - On being questioned, he explained that he works for Shri Manda Ramu of M/s Om Lakshmi Venkateshwara Jewellers, Rajahmundry and had brought Rupees Thirty lakhs in cash, gave it to Shri Balaji of M/s SLN Securities, Chennai and received gold pieces as per instructions from Shri Manda Ramu and was carrying them back concealed the same jacket when he was stopped by RPF - The pieces of gold were assayed and they were found to be of 99.9% purity which is the purity of smuggled gold usually found - When questioned, Shri Balaji of M/s SLN Security confirmed that he obtains smuggled gold from M/s Surana Corporation and sell it to Shri Manda Ramu and gets paid Rs. 2000 per kg. for this service - DRI officers also found pieces of gold including with foreign markings at the place of M/s SLN Security - They also found an unsigned original and duplicate invoice issued by M/s SLN Security in favour of M/s Om Lakshmi Jewellers - The closing stock of gold in ledger of M/s SLN Security on as 8.5.2014 was only 1.347 kg. - There is no way 3.158 kg. of gold could have been sold in morning of 9.5.2014 with that stock - Shri Balaji got another invoice for purchase of 2000 gm of gold and tried to explain that the two add up to substantiate the sale of 3.158 kg of gold to Shri Manda Ramu - The seized gold is of foreign origin and the DRI officers had a reasonable belief that it was smuggled and has correctly been seized - Neither the person from whom gold was seized, i.e. that Shri Sathyanarayana nor alleged owner of gold, Shri Manda Ramu, could discharge the onus of showing that it is not smuggled gold - Much emphasis has been laid in all appeals on the fact that the pieces of gold which have been seized had no foreign markings - Be that as it may, lack of foreign markings does not change the status of goods under Section 123 of Customs Act, 1962 - The purity of gold, lack of invoice, payment for gold in cash concealed in a jacket and in which the gold was also being carried all add up to give reasonable belief to the officer - The original and duplicate copies of invoice, unsigned, prepared by Shri Balaji in favour of Shri Manda Ramu do not inspire any confidence because if it was an invoice issued for sale it should have been sent with the goods after signature which is not the case - In fact, the initial statement Shri Balaji clarified that he prepared the invoice after receiving the same information about seizure of gold - This is nothing but an attempt to cover up - Confiscation of 3.158 kg. of gold seized from Shri V. Sathyanarayana under Section 111(a) & (d) r/w Section 120 of Customs Act, 1962 needs to be upheld - Similarly, confiscation of goods used for concealment of smuggled gold of no commercial value (Jacket) also need to be upheld - The 173.400 gm of cut pieces of gold bars do not fall under the mischief of Section 123, confiscation of this gold cannot be sustained - As far as imposition of penalty of Rs. 10 lakhs upon Shri V. Sathyanarayana under Section 112(b) of Customs Act, 1962 is concerned, confiscated gold was being carried by him, though as a courier for Shri Manda Ramu this penalty needs to be upheld - Therefore, he has rendered himself liable for penalty under Section 112(b) ibid - However, considering that he was only a courier carrying the gold penalty on him reduced to Rupees One lakh - As far as penalty of Rupees Twenty lakhs upon Shri Manda Ramu is concerned, he was the buyer of smuggled gold which has been confiscated and therefore, no interference is required with the penalty imposed upon him - Similarly, no reason found to interfere with penalty of Rupees Twenty lakhs imposed upon Shri Balaji under Section 112(b) of Customs Act, 1962: CESTAT

- Appeals partly allowed: CHENNAI CESTAT