I-T- It is appropriate to restore case to AO for taking necessary action in accordance with law in light of order of NCLT, Kolkata : ITAT

I-T - As per mandate of CBDT Instruction, AO cannot travel beyond scope of limited scrutiny so as to enlarge scope of assessment by framing additions on different grounds: ITAT

I-T - VAT laws permit belated payment of tax with interest & are not hit by Explanation I to Section 37(1); interest on delayed payment of VAT allowable u/s 37: ITAT

I-T - No addition can be made on mere conjecture and surmises without any corroborative material : ITAT

2022-TIOL-535-ITAT-KOL

Cosmic Ferro Alloys Ltd Vs DCIT

Whether it is appropriate to restore case to AO for taking necessary action in accordance with law in light of order of NCLT, Kolkata - YES : ITAT

- Matter remanded: KOLKATA ITAT

2022-TIOL-534-ITAT-BANG

NSL Sugars Ltd Vs ADIT

Whether it is a fit case for remand where deduction u/s 43B is disallowed without properly considering the bank statements furnished by the assessee - YES: ITAT

- Matter remanded: BANGALORE ITAT

2022-TIOL-533-ITAT-DEL

Vikas Jewels Pvt Ltd Vs ITO

Whether as per mandate of relevant Instructions issued by the CBDT, the AO cannot travel beyond scope of limited scrutiny so as to enlarge scope of assessment by framing additions on different grounds - YES: ITAT

- Assessee's appeal allowed: DELHI ITAT

2022-TIOL-532-ITAT-MUM

Neelkamal Realtors Suburban Pvt Ltd Vs ACIT

Whether interest paid on delayed deposit of VAT duty, is to be disallowed u/s 37(1), considering that VAT laws permit belated payment of tax with interest & so are not hit by Explanation I to Section 37(1) - NO: ITAT

- Assessee's appeal allowed: MUMBAI ITAT

2022-TIOL-531-ITAT-JAIPUR

Ashok Dharendra Vs DCIT

Whether addition can be made on mere conjecture and surmises without any corroborative material - NO: ITAT

- Assessee's appeal allowed: JAIPUR ITAT

2022-TIOL-530-ITAT-INDORE

ACIT Vs Mohanlal Chugh

Whether burden to prove understatement in land deals lies on revenue, whether without discharging this burden, no addition can be made - YES: ITAT

- Revenue's appeal dismissed: INDORE ITAT

GST - Refund - Once petitioner had taken steps to move Court and notice was issued, the respondents were, in a sense, forewarned that statutory interest would kick-in: HC

GST - Avoluntary statement cannot substitute a statutory notice, which is contemplated under Rule 142(1A) of the 2017 Rules: HC

GST - Pre-show cause notice consultation was mandatory under the 'unamended' Rule 142(1A): HC

ST - Any construction and works contract if used for repair and renovation of existing factory, same falls under inclusion clause of definition of Input Service, accordingly, Cenvat credit is admissible: CESTAT

CX - Since the services are in relation to activities which are post sale and clearance of goods, same cannot be treated as input services for manufacture of goods cleared by appellants from their factory: CESTAT

Cus - In absence of any evidence to prove that the terms of LOP have been violated in terms of quantity or value as specified in said LOP, the violations if any cannot be termed to be anything more than technical violations: CESTAT

ST - No limitation is applicable as provided under Section 11B, due to overriding effect of CGST Act, appellant is entitled to refund under provisions of Section 142(3) r/w 142(8) (b) of CGST Act r/w erstwhile provisions of Central Excise Act and Cenvat Credit Rules: CESTAT

2022-TIOL-751-HC-DEL-GST

Gujarat Nippon International Pvt Ltd Vs UoI

GST - Petition filed seeking directions to hold Circular 37/2018-Cus as ultra vires the provisions of CGST Act, 2017 to the extent it purports to clarify that the refund of IGST will not be granted when drawback is claimed under column ‘A' of drawback schedule and to direct the respondents to grant forthwith the refund of IGST along with appropriate interest. Held: Issue raised in the petition is no longer res integra , and is covered in favour of petitioner by various judgments passed by this Court as well as by the other High Courts - It is quite evident that once the petitioner had taken steps to move the Court and notice was issued in the writ petition, the respondents were, in a sense, forewarned that statutory interest would kick-in - In the given facts, in the very least, interest should accrue to the petitioner at the statutory rate i.e., 6% (simple) from 01.10.2021 - Petitioner is not pressing that part of prayer clause (i) whereby a direction is sought to declare the circular dated 09.10.2018 as ultra vires the CGST Act - Respondents/revenue are directed to refund the IGST amounting to Rs.7,12,996/- along with interest at the rate of 6% (simple) commencing from 01.10.2021 within a period of three weeks - Writ petition is disposed of: High Court [para 8.1, 11, 11.2, 12, 13.1]

- Petition disposed of: DELHI HIGH COURT

2022-TIOL-750-HC-DEL-GST

Gulati Enterprises Vs CBIC

GST - Petitioner has assailed the show cause notice dated 21.05.2020 on the ground that the mandatory requirement of pre-show cause notice consultation, as embedded in Rule 142 (1A) of the Central Goods and Service Tax Rules, 2017 has not been adhered to - Argument of Revenue counsel is that everything that the pre-show cause consultation notice would envisage, was captured in the voluntary statement given by the aforementioned authorized signatory of the petitioner concern i.e., Mr Tarun Gulati. Held: With effect from 15.10.2020 i.e., after the impugned show cause notice was issued, Rule 142(1A) has undergone a change, inasmuch as the word 'shall' has been replaced with 'may' - Having regard to the position which obtained prior to 15.10.2020, Bench would have to hold that pre-show cause notice consultation was mandatory under the unamended Rule 142 (1A) - A voluntary statement cannot substitute a statutory notice, which is contemplated under Rule 142(1A) of the 2017 Rules - Prayer made in the writ petition is allowed - The impugned show cause notice dated 21.05.2020 is set aside - This, however, will not prevent the respondents/revenue from issuing a pre-show cause consultation notice, in the prescribed form - Petition is disposed of: High Court [para 9.1, 10, 12.1, 13, 13.1, 13.2]

- Petition disposed of: DELHI HIGH COURT

2022-TIOL-444-CESTAT-AHM

Bombay Market Art Silk Cooperative (Shops And Warehouse) Society Ltd Vs CCE & ST

ST - The issue involved is that whether the appellant is entitled for Cenvat credit in respect of Construction/Works Contract Service for re-carpeting of road in their industrial estate - The lower authorities denied Cenvat credit on the ground that it is a new construction of road under works contract service which is excluded in definition of Input Service under Rule 2(l) of Cenvat Credit Rules, 2004 - The fact is not under dispute that industrial estate already existed and for moving around Industrial Estate the tar roads were also existing - The works contract/construction was executed for purpose of re-carpeting of existing road - Therefore, said services are for the purpose of repair and renovation of exiting industrial estate - Therefore, this service is for repair and renovation and not for originating the new construction - This issue has been considered in decision of Tribunal in Reliance Industries Limited - 2022-TIOL-359-CESTAT-AHM and from the said decision, it is clear that any construction and works contract if used for repair and renovation of existing factory, the same falls under inclusion clause of definition of Input Service, accordingly, Cenvat credit is admissible - The impugned order is set-aside: CESTAT

- Appeal allowed: AHMEDABAD CESTAT

2022-TIOL-443-CESTAT-MAD

Doowon Automotive Systems India Pvt Ltd Vs CGST & CE

ST - During audit of accounts, it was noticed that assessee is liable to pay service tax under category of renting of immovable property service, ocean freight charges and scientific and technical services - Assessee paid the tax along with applicable cess - As they were eligible to avail credit on amount paid under reverse charge mechanism, they filed refund claim under section 11B of Central Excise Act, 1944 r/w section 142(3) of CGST Act, 2017 - The original authority rejected the refund claim holding that there is no provision to grant refund after the introduction of GST - On appeal, Commissioner (Appeals) held that the assessee is eligible for refund, however, the issue as to whether the refund is time-barred has to be verified - Following the decision in case of Punjab National Bank 2021-TIOL-453-CESTAT-BANG , rejection of refund claim on the ground of limitation is not justified - The impugned order is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT

2022-TIOL-442-CESTAT-MUM

CCE & ST Vs Maneesh Exports

Cus - Assessee, a 100% EOU unit, is operating under 'Letter of Permission' - The letter of permission mentioned the finished goods for exports as "Capsules/Tablets of Pharmaceutical Formulations" - Same was subsequently amended to include "Dry Syrup and Suspensions, Injections" in list of final products for export - They were procuring imported/ indigenous raw material without payment of duty as provided under Notification Nos. 52/2003-Cus. and 22/2003-C.E. - SCNs were issued for demanding Customs/Excise duty on raw materials procured claiming exemption and used for finished products, which were not listed in their 'Letter of Permission' - The entire case of revenue is based on the fact that assessee had manufactured these finished products which were not as per LOP, using the raw material imported duty free - No merits found in these arguments as assessee have consumed the duty free raw material for achieving export obligations on yearly basis and on whole as per the LOP issued to them and amended from time to time - No evidence has been produced by revenue that the terms of LOP have been violated in terms of quantity or value as specified in said LOP - In absence of any such allegation or finding by the relevant authorities, the violations if any cannot be termed to be anything more than technical violations as pleaded by assessee and held by Commissioner (Appeals) - The amount of duty involved is less than Rs. 50,00,000/- and the same could have been dismissed as withdrawn in terms of litigation Policy Circular F. No. 390/Misc/116/2017-JC : CESTAT

- Appeals dismissed: MUMBAI CESTAT

2022-TIOL-441-CESTAT-MUM

Dhoot Compack Pvt Ltd Vs CCE & ST

CX - T he appellants had availed credit of service tax paid on sales commission paid to one M/s. Supreme Packaging with whom they had entered into an agreement to appoint them as 'Del Credere Agent' for effective proper guarantee of solvency of customers and effective recovery of money - Since these services are post clearance services, Revenue was of the view that credit availed against these services would not be admissible - Accordingly, a SCN was issued to appellant - In fact the amount of duty involved is Rs. 1,46,148/- which is less than the prescribed limit of Rs. 2 lakhs and the appeal can be dismissed as non-maintainable, in view of low amount involved and as per proviso to Section 35B(1) of Central Excise Act, 1944, the Tribunal could refuse to admit appeal involving such low amount - Appellants had appointed M/s. Supreme Packaging as "Del Credere Agent", to guarantee the solvency of their customer and ensure speedy recovery of the amounts due from them - These service are in relation to the activities which are post sale and clearance of goods and hence these cannot be treated as input services for manufacture of goods cleared by appellants from their factory - Following the ratio of decision in Technova Imaging Systems Pvt. Ltd. , no merits found in this appeal: CESTAT

- Appeal dismissed: MUMBAI CESTAT

2022-TIOL-440-CESTAT-MUM

Oasis Alcohol Ltd Vs CCGST

CX - Appellant is holding Central Excise Registration for manufacture of excisable goods namely Special Denatured Spirit and non excisable goods namely Rectified Spirit, out of the input, viz. Molasses - Undisputed fact is that appellant had received molasses from three khandsari units and in terms of Rule 4(2) r/w Rule 5 of Central Excise Rules, 2002 was required to pay Central Excise Duty due on said goods treating them as if said goods have been manufactured by them - Rules 4(2) and 5 ibid, creates the liability to pay Central Excise Duty on recipient of goods by treating them as "deemed manufacturer" of impugned goods - These rules do not provide for the manner of payment of duty in respect of these goods - In case of Rule 4(2) ibid it is quite evident that this rule itself declares that the procurer pays the duty as if the goods have been manufactured by procurer, i.e., the procurer is deemed to be manufacturer/producer of said goods - Thus in all the three case whether in terms of Rule 4(1A), 4(2) or 12AA(1) ibid the duty is paid, by treating the person making the payment of duty as deemed manufacturer - Hence in terms of Rule 3(4) of Cenvat Credit Rules, 2004, if Commissioner (Appeals) is of view that duty liability in terms of Rules 4(1A) and 12AA(1) ibid could have been discharged from CENVAT account, then same should be true for duty to be discharged under Rule 4(2) ibid - Hence, Tribunal do not agrees with impugned order to this extent - The fraudulent intentions of appellant to avail credit without payment of duty cannot be justified on the basis of legal, submissions made by appellant - The fact remains as observed by Commissioner (Appeals), no duty either from CENVAT Account or in cash have been paid in respect of these procurement - It is settled by decisions of Tribunal and courts that interest liability is associated with delay in payment of duty - Interest under Section 11AA of Central Excise Act, 1944 is also recoverable from appellant - Penalty imposed under Rule 25 of Rules is legal and proper: CESTAT

- Appeal partly allowed: MUMBAI CESTAT