2022-TIOL-825-ITAT-JABALPUR

Awadh Traders Vs ITO

Whether repeated failure of assessee to produce books of account calls for best judgment assessment u/s 144 - YES: ITAT

- Assessee's appeal dismissed: JABALPUR ITAT

2022-TIOL-824-ITAT-JABALPUR

Janpaksh Printing And Publishing Vs ITO

Whether law of limitation providing a shorter period, in the absence of retrospectivity, could not extinguish a vested right of action - YES: ITAT

Whether question of remission to the file of the first appellate authority arises only where the assessee has indeed raised any fresh argument, supported by material/s, before the said authority - YES: ITAT

- Assessee's appeal partly allowed: JABALPUR ITAT

2022-TIOL-823-ITAT-CHD

Jatinder Kumar Jain Vs ITO

Whether mere reliance on report of Investigation Wing and statement of third party which do not even mention assessee's name, is no basis to treat any LTCG as bogus and make additions u/s 68 - YES: ITAT

- Assessee's appeal allowed: CHANDIGARH ITAT

2022-TIOL-30-AAAR-GST

Gujarat Industrial Development Corporation

GST - AAR has held that the various activities carried out by the Applicant M/s Gujarat Industrial Development Corporation, Gandhinagar to the plot holders in terms of provisions of GIDC Act, 1962 and charges collected for the same, as may be notified from time to time, amounts to supply under Section 7 of Central Goods and Service Tax Act, 2017 (CGST Act) and is liable to GST - AAR has also observed that appellant is a 'wing' of Gujarat Government (which has come into existence by virtue of GID Act, 1962), like any other department of Gujarat Government and will fall under the category of 'State Government' and not of Governmental Authority as stated by appellant; that, therefore, the activities of the appellant are covered under clause (i) of Section 2(17) which reads as "any activity or transaction undertaken by Central Government, a State Government or any local authority in which they are engaged as public authorities", read with sub-sections (1) and 1(A) of Section 7 of CGST Act, 2017 and would amount to supply; that the appellant is not eligible for exemption mentioned at Entry No. 04 of Notification No. 12/2017- Central Tax (Rate) as the activities carried out by the appellant are not in relation to function entrusted to the municipalities under Article 243W of the Constitution of India - Aggrieved, appellant is before the Appellate Authority. Held: There is sufficient cause to condone the delay of 30 days in filing the appeal after expiry of appeal period on 04/11/2020 - Even otherwise, the last date for filing appeal stands extended w.e.f. 15.03.2020 in view of the Orders dated 23.03.2020 and 27.04.2021 of Hon'ble Supreme Court in Suo Motu Writ Petition (Civil) No. 3/2020 read with CBIC Circular No. 157/13/2021-GST dated 20.07.2021 - When it is established beyond doubt that the activity of the appellant amounts to business, the question of invocation of clause (b) of section 2(17) of CGST Act, 2017 losses its relevance - To be termed as ‘governmental authority' in the context of Sr. No. 4 of Notification No. 12/2017-Central Tax (Rate) , appellant satisfies the first condition [ set up by Act of Parliament or a State Legislature ] as well as the second condition [ with 90% or more participation of Government, by way of equity or control ] but does not satisfy the third condition [ to carry out any function entrusted to a municipality under article 243W of the Constitution ] - Inasmuch as the Activity of appellant i.e. establishment, organization and development of industries and industrial areas and estates is not at all related to entry at Sr. No. 3 of XII schedule of the Constitution of India [ Planning for economic and social development ] - Unless there is specific entry pertaining to the establishment and development of industries in XII Schedule, the above mentioned activities performed by the appellant cannot be said to pertaining to entries of XII Schedule and appellant does not fulfil the third condition of it being governmental authority - However, the appellant falls under the category of 'Government Entity' as defined at clause (zfa) of Para 2 of Notification 12/2017-Central Tax (Rate) - To the above extent Appellate Authority disagrees with the findings of GAAR which concluded that GIDC falls under the category of 'State Government' - However, it is held that the appellant is not eligible to claim exemption under Sr. No. 4 of Notification No. 12/2017-Central Tax (Rate) as they are not a governmental authority carrying out function entrusted to a municipality under article 243W of the Constitution - The appellant also does not fall under the category of 'State Government' and also their functions are not covered under Twelfth Schedule of Article 243W of the Constitution, therefore, they are not eligible for exemption benefit under Notification No. 14/2017-Central Tax (Rate) - Appeal filed is rejected by upholding the Advance Ruling No. GUJ/GAAR/R/88/2020 dated 17.09.2020 of the Gujarat Authority for Advance Ruling, with modification in their findings to the effect that the appellant does not fall under the category of 'State Government' but is covered under the category 'Government Entity': AAAR GST - Insofar as the submission that if the ruling pronounced by GAAR is upheld, then in terms of Sr. No. 5 of Notification No. 13/2017 - Central Tax (Rate) , the applicable GST would be payable by the recipient under RCM, Appellate Authority is of the view that when the appeal is filed against ruling pronounced by GAAR, the appellate authority cannot go beyond the issue of the appellant on which the ruling is pronounced by Advance Ruling Authority and, therefore, cannot consider the merits of the point raised by the appellant: AAAR

- Appeal rejected: AAAR

2022-TIOL-90-AAR-GST

NSK Ship Management Pvt Ltd

GST - Vessel support services provided in relation to foreign vessels sailing to other countries outside India, falls under "Export of Services" as per Section 2(6) of the IGST Act as the "Place of Supply" in such cases is entirely "Outside India" - If such vessels are calling at the Port in India, then the Place of Supply in respect of that vessel is in India as per Section 13(6) of the IGST Act 2017 and the services rendered to that vessel is not 'Export of Service': AAR

- Application disposed of: AAR

2022-TIOL-61-SC-CX

Steel Authority Of India Ltd Vs CCE

CX - CESTAT had by its order dated 11th June, 2007 maintained the appeal with regard to the penalty aspect and dismissed the appeal with regard to duty demand as non-maintainable for want of clearance from the CoD - Appellant deposited the duty demand of Rs.15.66 crore under protest and thereafter on 11th February 2011, filed a fresh application before the CoD , requesting for permission to pursue the abovesaid appeal with respect to duty aspect before the CESTAT - The restoration application was dismissed by CESTAT on 30th October, 2012 - Since the further appeal was rejected by the High Court, the present appeal – Counsel for Revenue submitted that the appellant had applied for refund and the said claim has been rejected, which has attained finality, therefore, the matter cannot be reopened. Held : Facts of the present case are peculiar - The second application was filed before the CoD on 11th February 2011 - In the meantime, the judgment of Supreme Court in the case of Electronics Corporation of India Limited ( 2011-TIOL-18-SC-CX-CB ) was delivered on 17th February 2011, which has done away with the mechanism seeking permission of CoD - As such, the second application of the appellant could not be considered by the CoD - The question of interest, therefore, has not been addressed by any of the authorities, therefore, Bench is inclined to allow the appeal - The impugned order dated 12th November 2013 passed by the High Court of Calcutta is quashed and set aside - The matter is remitted to the CESTAT for consideration of the limited aspect of interest on duty: Supreme Court [para 12, 13]

- Matter remanded: SUPREME COURT OF INDIA

2022-TIOL-1037-HC-MAD-ST

White Cliffs Hair Studio Pvt Ltd Vs Addl. Commissioner

ST - Petitioner is a Hair Studio stated to be engaged in Non-surgical Hair Replacement/Cranial Prosthesis for persons who have suffered hair loss - The question to be answered is as to whether the activity carried on by the petitioner in the hair studio, constitutes sale of a product, being a wig, or service of preparation of wig and fitment thereof - Impugned order concludes that the activity would fall squarely within the definition of service under Section 65B(44) of the Finance Act, 1994, effective from 01.07.2012.

Held: The manufacture of wigs falls under Chapter 67 of the Central Excise Tariff Act, 1985 and the petitioner remits Central Excise Duty - Without question, the integral component of the transaction in the present case is the wig itself, as without the wig, there would be no transaction per se - The fitment of the wig and the preparation of the scalp to receive the wig is incidental to the product itself - The dominant transaction in the present case is the manufacture and supply of the wig - The services of preparation of the scalp, fitment as well as maintenance of the wig are merely to facilitate and aid in the utilization of the product and would have no relevance in the absence of the wig - A client could well purchase a wig without opting for the service of fitment or maintenance - Impugned order of assessment fails - Writ Petition is allowed: High Court [para 8, 11, 12, 14]

- Petition allowed: MADRAS HIGH COURT

2022-TIOL-1036-HC-DEL-CUS

Directorate General of Trade Remedies Vs Jindal Saw

Cus - Maintainability - Appeal has been preferred under Section 130 of the Customs Act, 1962 against the order dated 14.07.2020 passed the CESTAT in the matter of an Anti-dumping appeal - Respondents contend that the instant appeal is not maintainable, as it concerns aspects veering around "rate of duty" and its continued imposition and, therefore, an appeal against the impugned order would lie, if at all, with the Supreme Court, under the provisions of Section 130E(b) of the 1962 Act. Held: While the 1962 Act is broadly concerned with the imposition of customs duty to generate revenue for the State, the duties embedded in the CTA, are in the nature of "trade remedial measures" - Anti-dumping duty (ADD) falls in this genre - These are protective measures taken by a country in consonance with the WTO agreements to shield its domestic industry from the injury that may be caused on account of goods being imported into the country at export prices, which are lower than the normal value prevalent in their home country - ADD is imposed to correct trade distortions triggered by the employment of unfair trade practices - Therefore, if one were to simplistically equate trade remedial measures such as ADD with a duty imposed under the 1962 Act, it would result in missing the wood for the trees - The ADD, being a trade remedial measure, in contradiction to the imposition of customs duty, has leeway with regard to the quantum or the rate at which anti-dumping duty may be imposed by the Central Government - The Central Government, based on the recommendation of the DA, as reflected in its final findings, can decide upon the imposition of the rate or quantum of ADD to be imposed, bearing in mind the cap stipulated under the provisions of CTA and the Rules - ADD that the Central Government can impose, cannot exceed the margin of dumping ascertained by the DA, which is the difference between the export price and the normal value of the dumped goods - The second sunset review, that the DA has carried out, relates to the ascertainment of whether or not withdrawing ADD would be injurious to the domestic industry i.e., will the withdrawal lead to continuation or recurrence of injury - This exercise does not concern itself directly with the rate of duty, as is contended on behalf of the respondents - The DA is required to conclude, whether the trade remedial measure, which was put in place in the first instance, had worked or not, and whether withdrawal of the measure would lead to the continuation or recurrence of unfair trade practice, (which is what dumping conceptually involves) leading to trade distortion in the domestic market - Preliminary objection taken by the respondents, as regards the maintainability of the instant appeal, cannot be sustained - Accordingly, the Registry is directed to list the appeal on 25.07.2022: High Court [para 53.1, 54, 71.1, 71.2, 79, 79.1, 82, 83] Cus - Anti-dumping duty - Respondent has also raised an objection with regard to the tenability of the appeal on the ground that it was not preferred by the Principal Commissioner or Commissioner of Customs as provided in section 130(2) of the 1962 Act. Held: Provisions of the 1962 Act and the rules and regulations made thereunder become applicable by virtue of sub-section (8) of section 9A of the CTA - A plain reading of sub-section (2) of section 130 of the 1962 Act would demonstrate, that the appeal to this Court could be preferred either by the Principal Commissioner of Customs or Commissioner of Customs or even "other party" aggrieved by any order of the Tribunal - The DA, would if nothing else, fall within the category of "other party" - Therefore, this objection is without merit, and hence is rejected: High Court [para 81.1]

- Appeal admitted: DELHI HIGH COURT