I-T - Assessee cannot evade pre-deposit of 20% of duty demanded, where assessment order in question is neither quashed nor stayed by Appellate Authority : HC

I-T - Re-assessment notice issued in name of non-existent amalgamated company is invalid: HC

I-T - Writ court's intervention is unwarranted in respect of search proceedings where any assessment order is yet to be passed : HC

2022-TIOL-606-HC-DEL-IT

GE Capital Global Energy Investment BV Vs ACIT

In writ, the High Court finds that the assessee established a prima facie case and that continuation of assessment proceedings would be to the assessee's detriment. Notice be issued to parties. Four weeks' time granted to file counter affidavit.

- Notice issued: DELHI HIGH COURT

2022-TIOL-605-HC-MAD-IT

Expovan Vs DCIT

Whether assessee can evade pre-deposit of 20% of duty demanded, where the assessment order in question is neither quashed nor stayed by Appellate Authority - NO: HC

- Writ appeal disposed of: MADRAS HIGH COURT

2022-TIOL-604-HC-MAD-IT

ITO Vs AA 226 Modakurichi Primary Agricultural Cooperative Credit Society

Whether writ court's intervention is required where the assessee has option of statutory appeal available & where the issue at hand is factual in nature - NO: HC

- Writ petition disposed of: MADRAS HIGH COURT

2022-TIOL-603-HC-RAJ-IT

Nirmla Devi Dhariwal Vs ITO

In writ, the High Court observes that the issue at hand is settled in favor of the assessee vide the judgment in the case of Sudesh Taneja vs. Income Tax Officer and others wherein it was held that by virtue of notifications dated 31.03.2021 and 01.04.2021 issued by CBDT substitution of reassessment provisions framed under the Finance Act, 2021 were not deferred nor could they have been deferred. The date of such amendments coming into effect remained 01.04.2021. Following such findings, the re-assessment notice is quashed.

- Writ petition disposed of: RAJASTHAN HIGH COURT

2022-TIOL-602-HC-AHM-IT

Gauriputra Estate Holders Pvt Ltd Vs UoI

In writ, the High Court observes that the re-assessment notice had been issued to a company which had ceased to exist on account of its amalgamation with another company. Hence the re-assessment notices stand quashed.

- Writ petition allowed: GUJARAT HIGH COURT

2022-TIOL-601-HC-AHM-IT

Riddhi Siddhi Infraspace LLP Vs ACIT

Whether writ court's intervention is warranted in respect of search proceedings where any assessment order is yet to be passed - NO: HC

- Writ petition partly allowed: GUJARAT HIGH COURT

GST - Entire adjudication proceedings have been carried out in stark disregard to the mandatory provisions of GST Act and in violation of principles of natural justice - Orders set aside: HC

GST - In State interest - Huge revenue involvement - Commissioner to issue appropriate guidelines elaborating therein procedure to be adopted by State Tax authorities regarding the manner of issuance of SCN, adjudication and recovery proceedings: HC

VAT - Amendment brought under TNVAT Act is curative in nature, removes mischief caused by wrongful interpretation resulting in adverse effects and restores 'benefit to all dealers effecting interstate sale': HC

VAT - Recovery proceedings initiated u/s 44 are untenable where proceedings are still ongoing before Appellate authorities: HC

VAT - Writ remedy cannot be invoked where the assessee is yet to invoke appellate remedy : HC

ST - When the services in question were used by SEZ unit for its authorized operations, hence, denial of refund for want of documents is not sustainable: CESTAT

CX - It is obligatory on the part of Commissioner to have allowed cross examination of Chemical Examiner when he was to decide the matter against appellant, matter remanded: CESTAT

Cus - The classification proposed and adopted in impugned proceedings must pass muster as an appropriate description of impugned goods before being subjected to comparison with declared classification: CESTAT

CX - In absence of findings that manufacturer had procured copper ingots which they utilized as raw material from any alternative source, neither the Cenvat credit can be denied nor any penalty can be imposed: CESTAT

ST - Activity of transportation of coal from pit-heads to railway sidings within mining areas is classifiable under Section 65(105)(zzp) of the Act, under head 'transport of goods by road service': CESTAT

2022-TIOL-600-HC-JHARKHAND-GST

Godavari Commodities Ltd Vs State of Jharkhand

GST - Petitioner prays for quashing and setting aside "summary of the order" as contained in Form-GST DRC 07 dated 11.09.2020 issued by respondent no.4 whereby the petitioner was directed to make payment of tax, interest and penalty - Various communications were exchanged between the petitioner and the Respondents-State Tax Authorities and the petitioner produced several documents to demonstrate its claim towards genuineness of the transactions of purchase and sale of coal made by the petitioner - However, the Respondent-authorities were not convinced with the documents furnished and issued an intimation to the petitioner in Form GST DRC-01A dated 29.01.2020 directing the petitioner to make payment of the amount of tax as stated in the notice along with applicable interest and penalty - In the said intimation itself, it was stated that if the petitioner fails to pay the amount demanded, 'show cause notice' will be issued to the petitioner under Section 74(1) of the GST Act - Subsequently, respondent No. 4 issued a 'summary of show cause notice' to the petitioner in Form GST DRC-01 in terms of Rule 142(1) of the GST Rules on 14th March, 2020 - The specific case of the petitioner is that no show cause notice was ever issued to the petitioner and even in the summary of the show cause notice, no time line was provided as to when the petitioner was to submit its reply - Subsequently, the petitioner was issued 'summary of order' in Form GST DRC-07 wherein the date of the adjudication order was mentioned as 11.09.2020.

Held: First issue to be adjudicated in the instant writ application is as to whether the very initiation of the adjudication proceeding without issuance of show cause notice is void ab initio and any consequential adjudication order passed thereto is non est in the eye of law - Present case is squarely covered by the decision of this Court in the case of NKAS Services Pvt. Ltd. ( 2021-TIOL-2079-HC-JHARKHAND-GST ) and, accordingly, it is held that the Adjudication Order is non est in the eye of law, as the same has been passed without issuance of proper show cause notice and, thus, amounts to violation of principles of natural justice - Further issues raised by the petitioner is also required to be dealt especially in view of the fact that this Court is flooded with several similar writ petitions wherein the procedure prescribed under the GST Act is not being followed by the GST authorities, more particularly, the State Tax authorities, leaving no option for this Court but to entertain the writ application straightaway against the Adjudication Order without relegating the Writ Petitioners to avail alternative remedy of appeal as provided under the GST Act - It would transpire that on 14th March, 2020, Form GST DRC-01 was issued without specifying any date of hearing and, thereafter, straightaway, an Adjudication Order was allegedly passed on 13th August, 2020 fastening liability of tax, interest and penalty upon the Petitioner - From the order sheet, it is evident that no opportunity of personal hearing was granted to the petitioner and the purported Adjudication Order was passed on 13.08.2020 i.e. on the first date itself after issuance of the summary of show cause notice - This itself clearly reveals that the entire adjudication proceedings have been carried out in stark disregard to the mandatory provisions of the GST Act and in violation of the principles of natural justice and, thus, the Adjudication Orders, allegedly dated 13.08.2020, are liable to be quashed and set aside on this ground also - Bench directs the Commissioner of State Tax Department to issue appropriate guidelines/circular/notification elaborating therein the procedure which is to be adopted by the State Tax authorities regarding the manner of issuance of Show Cause Notice, adjudication and recovery proceedings, so that proper procedure is followed by the State Tax authorities in conduct of the adjudication proceedings, as huge revenue of the State is involved and it would be in ultimate interest of the Respondent-State of Jharkhand itself that the adjudication proceedings are conducted after following due procedure and process of law - Summary of show cause notices, both dated 14.03.2020, Adjudication Order Dated 13.08.2020 and summary of orders, both dated 11.09.2020, issued against the petitioner in both the writ petitions, are hereby, quashed and set aside - Writ applications allowed: High Court [para 17, 18, 19, 23, 27, 28]

- Petitions allowed: JHARKHAND HIGH COURT

2022-TIOL-599-HC-MAD-VAT

State of Tamil Nadu Vs Everest Industries Ltd

Whether amendment of 2015 brought under TNVAT Act is curative in nature, removes mischief caused by wrongful interpretation resulting in adverse effects and restores 'benefit to all dealers effecting interstate sale' - YES: HC

Whether once inputs are used in manufacture or processing of goods within State, then subsequent event of manufactured goods being sold inter-state/intra-state sale "would have no bearing nor does it result in imposing any restriction on the right to ITC earned" in the interregnum period - YES: HC

- Revenue's appeal partly allowed: MADRAS HIGH COURT

2022-TIOL-598-HC-AHM-VAT

HCL Infosystems Ltd Vs State of Gujarat

Whether recovery proceedings initiated u/s 44 of the Gujarat VAT Act are untenable where proceedings are still ongoing before the Appellate authorities - YES: HC

- Writ petition allowed: GUJARAT HIGH COURT

2022-TIOL-597-HC-KERALA-VAT

Dream Appliances Vs State Tax Officer

Whether writ remedy can be invoked where the assessee is yet to invoke appellate remedy - NO: HC

- Writ petition dismissed: KERALA HIGH COURT

2022-TIOL-346-CESTAT-DEL

CST Vs NP Earth Movers Pvt Ltd

ST - M/s WCL had awarded a contract to assessee for loading and transfer of coal from one place to another in licensed area of its mines and it was noticed by department that assessee did not pay service tax under category of 'mining services' contemplated under section 65(105)(zzzy) of Finance Act, 1994 - The Department in Memorandum of Appeal, has emphasized that the activity carried out by assessee is ancillary to or in relation to mining activity and therefore, would merit classification under 'mining services' - This issue was examined by Supreme Court in Singh Transporters wherein it is held that the activity would appropriately be classified under head "transport of goods by road service" and the activity does not involve any service in relation to "mining of mineral" as contemplated under section 65(105)(zzzy) of the Act - The Supreme Court also held that definition of "mines" has no apparent nexus with activity undertaken under the service rendered - The findings recorded by Commissioner are in conformity with judgment of Supreme Court - There is, therefore, no merit in this appeal: CESTAT

- Appeal dismissed: DELHI CESTAT

2022-TIOL-345-CESTAT-BANG

Eygbs India LLP Vs CCT

ST - The only issue involved is, whether the denial of refund claim of Service Tax paid on input services used by appellant in its authorized operations in SEZ units is correct - Revenue has not denied the fact that the services in question were used by SEZ unit for its authorized operations - Hence, denial of refund for want of documents is not sustainable - Therefore, no reason or justification found to sustain impugned order as well as denial of refund - Consequently, impugned order is set aside: CESTAT

- Appeals allowed: BANGALORE CESTAT

2022-TIOL-344-CESTAT-AHM

Arham Petrochem Pvt Ltd Vs CCE & ST

CX - Issue is classification of ARH-C Crude Oil manufactured by appellant from raw material - The department has classified the same under Chapter heading 27101990 of CETA, 1985 which covers Petroleum Oils and Oils obtained from bituminous minerals, other than Crude - Whereas appellant claimed the classification under Tariff Item 2709 00 00, which covers Petroleum oils and Oils obtained from Bituminous Minerals, Crude - During personal hearing before Adjudicating authority, appellant submits that since the matter has been examined in depth by DGCEI and they have got another test report from other private reputed private laboratory, there may not be any further point to cross examine the Chemical Examiners from his point of view - However, if adjudicating authority thinks otherwise, Chemical examiner may be called for cross examination - Clearly, since the said report was in favour of appellant, they had bona-fide belief that the matter in their favour - However, it is obligatory on the part of Commissioner to have allowed cross examination of Chemical Examiner when he was to decide the matter against appellant - In case of contradictory test reports, cross-examination of expert is required - Therefore, matter is remanded to adjudicating authority to decide the matter afresh after affording an opportunity of cross-examination to appellant of said experts as well as after affording an opportunity of hearing to appellant: CESTAT

- Matter remanded: AHMEDABAD CESTAT

2022-TIOL-343-CESTAT-DEL

KEI Industries Ltd Vs CCE

CX - Assessee is engaged in manufacture of electric wires and cables and winding wires of copper - They purchased copper ingots from M/s V.K. Metal Works(VKM) and sent them directly to its job workers for converting them into copper wire rods - They availed Cenvat credit on invoices issued by VKM after following the proper procedures - Based on investigation that VKM had issued invoices without receiving any raw material and without manufacturing and supplying copper ingots, a SCN was issued to VKM demanding central excise duty - SCNs were also issued to various buyers of VKM including the assessee seeking to deny Cenvat credit - This Tribunal had already decided, by a detailed order, that this allegation is not true and VKM had manufactured copper ingots - Therefore, no basis remains for denial of Cenvat credit to the assessee - Consequently, imposition of penalty upon assessee and Shri Anil Gupta, Director of assessee also cannot sustain - Impugned order is, accordingly set aside: CESTAT

- Appeals allowed: DELHI CESTAT

2022-TIOL-342-CESTAT-DEL

Janki Fragrances Vs CC

Cus - The order of confiscation and imposition of fine in lieu thereof along with imposition of penalty also upon CHA has been passed solely relying upon acknowledgment of appellant about Chemical Examiners' report and acknowledgement to the effect that essential oil which was exported in consignment vide shipping bill was actually the sandalwood oil instead of being Jasmine Sambac essential oil as was declared by appellant - Though appellant has emphasised that the said wrong mention was absolutely inadvertent but perusal of entire record shows no single document to reveal any such circumstances due to which the said inadvertent mistake would have occurred by appellant - In absence thereof, acknowledgement is nothing but the admission of noticed contravention of provisions of Customs Act, 1962 - The Chemical examiner report though has been impressed upon by appellant but the said report also reveals that the essential oil seized from the appellant was sandalwood oil instead of Jasmine Sambac oil which was mentioned on export consignment - Earlier also the appellant had been exporting essential oil in the name of Jasmine Sambac essential oil and it also has been availing duty draw back - Nothing could be produced by appellant to show that he was dealing with both the kinds of oils - The CHA also had not responded to summons - His firm was rather found non-existing at the given address - He is alleged to have failed to exercise due diligence as was otherwise required by him while submitting the shipping bills - No infirmity found in the order under challenge, same is accordingly, upheld: CESTAT

- Appeal dismissed: DELHI CESTAT

2022-TIOL-341-CESTAT-MUM

Ocean Crest Marine Vs CC

Cus - The dispute arose on import of two vessels declared as 'Excursion Boat Monterey 180 FSW/Volvo Penta 3.0 GL; 135 HP' in bills of entry seeking clearance for home consumption which, upon 'first check' examination and by relying upon catalogues and pamphlets of manufacturer promoting vessels as 'sports boat', was re-classified to disadvantage of importer - The impugned order being nothing other than mere endorsement of finding of original authority, it is to the latter that Tribunal turn to for ascertainment of discharge of onus mandated by Supreme Court - The original authority appears to have relied upon some definition of 'excursion boats' which neither answers as a description of impugned vessel nor is validated to assist, by revealed provenance, in judicial determination - There is no finding that asserts the includability of impugned goods within the residual 'other' in heading 8903 of First Schedule to Customs Tariff Act, 1975 - It found inexplicable that the lower authorities also adopted an adverse inference from non-furnishing of invoices of manufacturer to discard the invoice of seller; the authority to require production of invoice of manufacturer is conferred under Customs Valuation (Determination of Value of Imported Goods) Rules, 2007 which is intended for a leg of assessment that is not in dispute - The invalidation of description in invoice of seller is, thus, premised upon wrongful authority - With the failure to establish appropriateness of specific enumerations in heading 8903 of First Schedule to Customs Tariff Act, 1975 or of the enumerated specific descriptions corresponding to tariff items in heading 8903, description sought by appellant does not have to be compared with that proposed by customs authorities - The declared classification prevails by default without going into its merit; of course, the capacity of imported vessels for carrying up to eight passengers and some luggage, implying unsuitability for endurance and speed that are hallmarks of vessels for sports and pleasure, immunizes the declaration in bills of entry from being discarded - Consequently, description and classification declared in bill of entry cannot be faulted - Impugned order is set aside: CESTAT

- Appeal allowed: MUMBAI CESTAT