Address by Shri Nitin Gadkari at TIOL Awards 2021

I-T - Issue of notice u/s 143(2) is sine-qua-non to assume jurisdiction to frame assessment : ITAT

I-T - Since no incriminating material is found during search which can question genuineness of claim u/s 80IB (10), same can be allowed: ITAT

I-T - Sec 2(22)(e) is not applicable on unsecured loan given to RSML as assessee is not a concern in which any of shareholders of RSML has substantial interest : ITAT

I-T - For purpose of computing disallowance u/s 14A r.w. Rule 8D, only investments, which yield dividend income must be considered: ITAT

I-T - Regular assessment resulting into creation of demand and wiping out refund already granted to assessee along with recovery of interest, cannot be sustained: ITAT

I-T- Case can be remanded as no opportunity has been specifically given to assessee to establish its case on evidence : ITAT

I-T - No profit or gain arise in relevant FY as there is no transfer in relevant year: ITAT

2022-TIOL-220-CESTAT-DEL

Hindustan Coca-Cola Beverages Pvt Ltd Vs CCGST & CE

CX - Issue involved is regarding eligibility of appellant to avail CENVAT credit distributed by ISD's of appellant - The credit has been denied by Department on the ground that after the amendment to the definition of 'input service' w.e.f. 01.03.2001 in Section 2(l) of the Cenvat Credit Rules, 2004 (the Credit Rules), the appellant was not entitled to avail CENVAT Credit on such services - The adjudicating authority was required to examine the reply and deal with it rather than rejecting the contention by merely stating that appellant has not been able to show any nexus - It has fairly been stated by appellant that in regard to two services namely, rent-a-cab and outdoor catering, the appellant is not assailing the order on merits, but is assailing the order only on the quantification - The reply filed by appellant regarding quantification of demand of duty has not been considered at all by adjudicating authority and in fact no finding has been recorded by Commissioner - Likewise, Commissioner has not considered the issue raised by appellant that notice could not have been issued to recipient of service distributed by an ISD and no finding has been recorded - The issue relating to invocation of extended period of limitation has been dealt with by Commissioner in a very cryptic manner, though a detailed reply had been filed by appellant - It is, therefore, a fit case where the matter should be remitted to the adjudicating authority for passing a fresh reasoned order - The impugned orders are accordingly set aside: CESTAT

- Appeals allowed: DELHI CESTAT

2022-TIOL-219-CESTAT-AHM

Aneeta Technopack Pvt Ltd Vs CST

ST - The only issue to be decided is that whether the refund claim of appellant against export of goods under bond is within the time-limit prescribed under Section 11B of Central Excise Act, 1944 - Initially the goods were exported under bond however, since the appellant could not produce proof of export within stipulated time period of six months - On the objection of audit, they had reversed the duty and thereafter on receipt of proof of export and submission thereof and also after realisation of export proceed, they filed the refund claim - Firstly, appellant have not represented the case before adjudicating authority therefore, adjudicating authority had no occasion to verify the facts regarding adjustment of duty paid on audit objection, date of realisation of foreign exchange and submission of proof of export - Tribunal also did not find any evidence such as any correspondence regarding adjustment of duty by department against payment made by appellant - Matter needs to be reconsidered by adjudicating authority - Since non-filing of proof of export beyond the control of appellant, they had also not realized the export proceed period from payment of duty till adjustment of duty by department/receipt of export proceed/receipt of proof of export should be deducted for computing the time limit of one year in terms of Section 11B ibid - Impugned order is set aside and matter remanded to adjudicating authority for passing a fresh order: CESTAT

- Matter remanded: AHMEDABAD CESTAT

2022-TIOL-218-CESTAT-BANG

Indian Oil Corporation Ltd Vs CC

Cus - The appellants are engaged in business of refining of crude oil and marketing petroleum products and procured Liquified Petroleum Gas or LPG for domestic market by importing the same - The issue arises is, whether the demurrage charges are includible in assessable value - Issue has been settled by Apex Court in case of Mangalore Refinery & Petroleum Chemicals Limited 2015-TIOL-306-SC-CUS wherein it has been held that the demurrage charges are not includible in assessable value - Therefore, demurrage charges are not includible in assessable value as the same are essentially post importation charges that are incurred after the goods reached the Indian ports - So, the demands on account of inclusion of demurrage charges in assessable value are set aside - As regards to entitlement for benefit of exemption Notification Nos. 82/2004-Cus. and 37/2005-Cus., issue of availability of benefit of notification was never raised by appellants during course of filing provisional Bills of Entry - Moreover, neither any protest was made and appellants themselves have classified their product under Tariff Item 2711 13 00 of Customs Tariff Act, 1975 - While filing provisional Bills of Entry, no protest was made with regard to classification of their product, i.e., LPG - Issue of classification cannot be raised to get the benefit of said Notfns - Similar view was taken by Tribunal in case of Hindustan Petroleum Corporation Limited 2020-TIOL-1357-CESTAT-MUM and H.P.C.L 2019-TIOL-1272-CESTAT-KOL - Therefore, appellants are not entitled for benefit of exemption Notification Nos. 82/2004-Cus. and 37/2005-Cus.: CESTAT

- Appeals disposed of: BANGALORE CESTAT