2022-TIOL-402-ITAT-DEL

Technicon Holdings Pvt Ltd Vs ACIT

Whether reopening of assessment is bad in law as based on investigation wing report which is borrowed satisfaction - YES : ITAT

- Assessee's appeal allowed: DELHI ITAT

2022-TIOL-401-ITAT-DEL

Rishipal Investments And Finance Pvt Ltd Vs ITO

Whether no addition can be made if assessee is denied to cross-examine person whose statement is basis for making addition and is recorded behind assessee's back – YES: ITAT

- Assessee's Appeal partly allowed: DELHI ITAT

2022-TIOL-400-ITAT-DEL

Jindal Steel And Power Ltd Vs CIT

Whether where subject matter of additions made in revisionary order were not dealt with in reassessment order passed under section 147, limitation for revision would begin from date of original assessment order under section 143(3) of the Act, and not from the date of reassessment order- Held- Yes: ITAT

- Assessee's appeal allowed: DELHI ITAT

2022-TIOL-399-ITAT-MUM

DCIT Vs Macrotech Developers Ltd

Whether in absence of contrary proved by Revenue and following order passed by co-ordinate Bench of Tribunal in identical situation penalty imposed u/s 271D can be deleted - YES : ITAT

- Revenue's appeal dismissed: MUMBAI ITAT

2022-TIOL-398-ITAT-JABALPUR

National Hospital Vs DCIT

Whether disallowance of employee's contribution to PF & ESI is sustainable where such payments are made before the due date of filing ITR even after the due dates under the relevant Acts - NO: ITAT

- Assessee's appeals allowed: JABALPUR ITAT

GST - AA appears to have adjudicated application as if it was for refund of unutilized ITC pertaining to exports without payment of tax whereas, in reality, it was export of services on payment of tax: HC

GST - Blunder committed - In notice of intimation DRC-01A, the proper officer shall not threaten the dealer that if he would fail to comply with intimation, department shall proceed to recover the tax: HC

GST - DRC-01, DRC-01A - Department needs to correct itself not only as regards their understanding of the entire procedure, but even the contents of the Forms are incorrect: HC

Cus - As per the policy, unless DGFT gets shipping bills amended from Customs Department, no benefit under MEIS scheme can be extended - Petitioners ought to have approached Customs Department for correction of shipping bills: HC

ST - Since the service provider is not a Telegraph Authority and appellant being a service recipient cannot be fastened with service tax demand under Telecommunication Service: CESTAT

CX - The supplies made to SEZ Developer amounts to export, therefore, appellant is not required to pay any amount in terms of Rule 6 of CCR, 2004: CESTAT

2022-TIOL-518-HC-AHM-GST

Exxat Systems Pvt Ltd Vs State of Gujarat

GST - Refund - Export of services with payment of tax - When the writ-applicant approached the authority regarding the rejection, the writ-applicant was told that while the refund cannot be granted, the writ-applicant would be entitled to the re-credit in the electronic credit ledger of the amount of refund rejected - Upon follow up with the authorities for the grant of recredit, the authority orally informed that the GST portal was not allowing the re-credit, therefore, the present petition.

Held: It appears that even though it was mentioned in the application for refund that it was an application pertaining to exports on payment of tax, the adjudicating authority appears to have adjudicated the application as if it was for refund of unutilized input tax credit pertaining to exports without payment of tax - It also appears from the documents on record that the order partially rejecting the refund was passed without issuing any show cause notice to the writ-applicant and is also a non-speaking and cryptic order - It will, therefore, be in the interest of justice that the impugned order to the extent the refund application of the writ-applicant has been rejected, is quashed and set-aside and the matter is remanded to the adjudicating authority for deciding afresh - Entire exercise to be completed within four weeks - Writ-application stands disposed of: High Court [para 6, 7, 8, 10]

- Application disposed of: GUJARAT HIGH COURT

2022-TIOL-517-HC-AHM-GST

Agrometal Vendibles Pvt Ltd Vs State of Gujarat

GST - Writ applicant has received an intimation of tax ascertained as being payable under Section 74(1) and (5) respectively of GST Act, 2017 in Form GST DRC - 01 dated 14th March 2022 - Writ applicant has also been informed or made to understand that if he fails to make the payment in DRC - 03, then the amount of Rs.34,88,26,406/-, as determined towards tax, shall be recovered with interest and penalty - It is the case of the department that both the vendors [ ASTERPATEL TRADE & SERVICES PRIVATE LIMITED & MANMISH TRADERS PRIVATE LIMITED ] have obtained the registration number by means of fraud, wilful misstatement or suppression of facts and, therefore, these registration numbers were cancelled from the date of it registration; that, therefore, the claimed input tax credit amounting to Rs. 7,03,27,905/- for SGST and Rs. 7,03,27,905/- for CGST totaling Rs. 14,06,55,810/- by showing purchase from both these vendor amounting to Rs. 482,91,81,986/- is inadmissible and recoverable along with interest of Rs 6,75,14,788/- and penalty of an equivalent amount of credit of Rs.14,06,55,810/-.

Held: The Form GST DRC - 01 is in the form of a show cause notice, which is issued under sub-section (1) of Section 74 of the Act i.e. in accordance with Rule 142(1)(a) of the Rules, 2017 - At the stage of an intimation under sub-section (5) of Section 74 in the Form GST DRC - 01A, it is Rule 142(1A) which is applicable, therefore, while issuing an intimation, the proper officer in the notice could not have said that failure on the part of the noticee may entail the consequence of recovery of the entire amount with penalty and interest - The blunder committed by the department is at this stage - The intimation under sub-section (5) has to be strictly in Form GST DRC - 01A - In the intimation, the dealer should be informed that if he fails to make the payment, the next step in the process will be issue of a show cause notice under sub-section (1) of Section 74 in accordance with the Form GST DRC-01 - Therefore, the department needs to correct itself not only as regards their understanding of the entire procedure, but even the contents of the Forms are incorrect - The intention of the proper officer was to give an intimation in accordance with sub-section (5) of Section 74 and, therefore, the intimation should have been in the Form GST DRC - 01A and not Form GST DRC - 01 - There is a vast difference between Rule 142(1)(a) and Rule 142 (1A) of the Rules - Therefore, from now onwards, if the department deems fit to issue any intimation of tax ascertained as being payable under sub-section (5) of Section 74 in accordance with the Rule 142(1A) of the Rules, it shall issue notice in the Form GST DRC - 01A - In such a notice of intimation, the proper officer shall not threaten the dealer that if he would fail to comply with the intimation, the department shall proceed to recover the tax - The proper officer should inform the dealer that if he would pay the tax, well and good, otherwise the department shall proceed to issue a show cause notice under sub-section (1) of Section 74 in accordance with Rule 142(1)(a) of the Rules, 2017 in Form GST DRC - 01 and carry out regular assessment proceedings - Impugned intimation of tax in the Form GST DRC - 01 is hereby quashed and set aside - Writ application is disposed of with a clarification that if the proper officer wants to undertake a fresh exercise, he may do so in accordance with law: High Court [para 24, 25, 28, 29]

- Petition disposed of: GUJARAT HIGH COURT

2022-TIOL-516-HC-MAD-CUS

Compuage Infocom Ltd Vs Pr.CC

Cus - 'Closed Circuit Television (CCTV) Camera' was classified by the appellant under CTH 85258010 as 'television cameras' and since the goods were of Korean origin, they assessed the same at 'Nil' rate of Basic Customs Duty in terms of S.No. 833 of Notification No. 152/2009-Cus dated 31.12.2009 - However, the Assistant Commissioner of Customs / Adjudicating Authority changed the classification from CTH 85258010 to CTH 852598090 i.e. "Others", charged BCD at 15% adv. - This order was upheld by the lower appellate authority as well as CESTAT - Even the ROM application filed against the Tribunal order came to be rejected, hence the present appeals - Appellant has strenuously disputed the observation of the CESTAT in para 6.2 of the order impugned herein that the appellant itself had classified the goods under CTH 8525 8090 in its bill of entry under dispute.

Held: Classification of CCTV cameras under CTH 8525 8010 was accepted by the Customs, New Delhi and the benefit of notification No. 152/2009 was extended to the appellant, as evident from the bill of entry No. 6450438 dated 19.05.2018; and the bill of entry No. 4232142 dated 01.12.2017 filed by M/s. Honeywell International India Pvt. Ltd classifying the similar goods under CTH 8525 8010, was taken into consideration - Materials on record would disclose that the appellant in all the documents placed before the authorities below, have mentioned their imported goods as classified under CTH 8525 8010 - Court is, therefore, inclined to set aside the orders passed by the authorities below for proper verification - Consequently, the matter is remitted to the Assessing Officer who should pass a fresh order within four weeks - Appeals are disposed of: High Court [para 9, 12]

- Matter remanded: MADRAS HIGH COURT

2022-TIOL-515-HC-MP-CUS

Adroit Industries India Ltd Vs UoI

Cus - Petitioner has challenged the action of the DGFT in this petition by which the MEIS claim has been rejected - Petitioner seeks relaxation/condonation of the procedure lapse of non-mentioning of MEIS scheme in the shipping bills at the time of export as arbitrary and discriminative; to direct issue of no objection certificate in favour of the petitioner to certify that the goods were exported by the petitioner and they have realised the export proceeds.

Held : The petitioners could not avail the benefit of MEIS during 2017-18 and 2018-19 due to the clerical error of the concerned staff and the system automatically has treated the shipping bills as "N" (for No) in the reward column - A similar issue came up for consideration before the Kerala High Court in W.P. No. 25339/2019 and it has been held that there is no justification for denying the claim based on such an inadvertent omission - In the matter of condoning such an omission, there cannot be discrimination between the exporters who made the claim within six months and those who have raised the claim after six months of the introduction of the scheme - As far as the role of DGFT is concerned, as per the policy, unless the DGFT gets the shipping bills amended from the Customs Department, no benefit under the scheme can be extended - Therefore, the petitioners ought to have approached the Customs Department for correction of the shipping bills and after such correction in the shipping bills, the DGFT get jurisdiction or authority to examine the matter - Hence no relief can be granted to petitioners in this writ petition hence the writ petition is dismissed: High Court [para 10, 12, 13]

- Petition dismissed: MADHYA PRADESH HIGH COURT

2022-TIOL-300-CESTAT-BANG

Louverline Blinds Vs CC

Cus - The only issue that arises for consideration is, whether the authorities below were justified in denying the benefit of conversion of shipping bills into advance license Shipping Bills as requested by appellant - The amendment is permissible but same is subject to Sections 30 and 41 ibid. - There is also no doubt that none of these Sections prescribes any time limit but it is only the circular which is prescribing such time limit - It is clear from circulars itself that the amendment to a shipping bill after goods are exported shall be on the basis of documentary evidence which was in existence at the time of export of goods, such request for conversion is made within 3 months from the let export order, examination report and other endorsement proves the fact of export and that the exported product is clearly covered under relevant SION/DEPB/Drawback as the case may be, exporter has fulfilled all other conditions of export promotion scheme to which conversion was sought - Authorities have also never expressed any doubts over documents available/in existence at the time of export - The non-examination by Revenue appears to have been taken to appellant's disadvantage since, practically also, other than requesting for an examination an assessee cannot do anything more - Moreover, Principal Commissioner has clearly erred in not appreciating that the shipping bills filed by appellants were not free shipping bills but it was clearly declared therein the intent of appellant as to availment of benefit under MEIS - This fact coupled with requirement of pre examination under Circular 6/2002 makes it clear that physical examination if any, should have been done as per Para 2.1 (C) and hence, failure on the part of authorities in conducting physical examination could not be attributed to as lapses on the part of appellant - Be that as it may, Para 3 of Circular 36/2010 makes it clear that the Commissioner may allow conversion of shipping bills where the level of examination is same - When this is applied to case on hand, level under Para 2.1 (C) for exports under Drawback DEPB Scheme covering MEIS is same as the level of examination under Para 2.1 (D) where exports made under EPCG/DEEC schemes covering advance licenses, which implies that request for conversion was to the schemes involving same level of examination and hence, the conversion of shipping bills are to be permitted as per Para 3 of Circular 36/2010 - The denial of benefit is clearly unacceptable and not in terms of spirits of Section 149 ibid. - Impugned order cannot be sustained and hence, the same is set aside: CESTAT

- Appeal allowed: BANGALORE CESTAT

2022-TIOL-299-CESTAT-BANG

Honey Well Technology Solutions Lab Pvt Ltd Vs CCE & ST

ST - Issue relates to demand confirmed on Manpower Recruitment or Supply Agency Service and Telecommunication Service - As regards to demand on Manpower Recruitment or Supply Agency Service, in appellant's own case 2020-TIOL-1277-CESTAT-BANG , this Tribunal held that arrangement for availing the services of executive appointed in appellant's company by foreign vendor does not amount to Manpower Recruitment or Supply Agency Service - Accordingly, demand under said Service is not sustainable and hence, same is set aside - As regards to 'Telecommunication Service', service provider is located outside India - He cannot be treated as Telegraph Authority as Telegraph Authority has to be recognised by an authority of law prevailing in India, therefore, service provider cannot be treated as Telegraph Authority - Issue is absolutely identical to TCS E-Serve Ltd. 2013-TIOL-2361-CESTAT-MUM - Accordingly, respectfully following the same, it is held that since the service provider is not a Telegraph Authority and the appellant being a service recipient cannot be fastened with service tax demand under Telecommunication Service - Accordingly, demand on Telecommunication Service is also not sustainable: CESTAT

- Appeal allowed: BANGALORE CESTAT

2022-TIOL-298-CESTAT-BANG

Alufit India Pvt Ltd Vs CST

CX - The appeal is directed against impugned order whereby the demand being 10% of price of goods cleared to SEZ Developers under Rule 14 of CCR, 2004 r/w proviso to Section 11A of CEA, 1944 was confirmed and consequently, interest and equivalent penalty was also confirmed - As regards the demand, same was made on the ground that appellants are supplying excisable goods to SEZ developer, which is exempted under Notfn 4/2004-ST and the appellant is required to reverse 10% of value of exempted excisable goods, in terms of Rule 6 of CCR, 2004 - From amendment through Finance Act, 2012 in CENVAT Credit Rules, 2004, which has retrospective effect from 10.02.2006, payments as prescribed under subrule (1), (2), (3) and (4) of Rule 6 of CCR, 2004 are not required to be made by appellant, in cases, where the services have been supplied under exemption to SEZ Developers - This Tribunal, even without aforesaid amendment, has taken a view that the supplies made to SEZ Developer amounts to export, therefore, the appellant is not required to pay any amount in terms of Rule 6 of CCR, 2004 - It is settled that appellants are not required to pay any amount under Rule 6 in respect of supplies made to SEZ Developers - Accordingly, demand and corresponding interest and penalty are not sustainable - Hence, impugned order is set aside: CESTAT

- Appeal allowed: BANGALORE CESTAT