2022-TIOL-1198-HC-ALL-IT

CIT Vs Raghuraji Devi Foundation Trust

Whether non disposal of application for registration within the period of 6 months as stipulated u/s 12AA(2) will not result in a deemed grant of registration to the trust - YES: HC

- Revenue's appeal allowed: ALLAHABAD HIGH COURT

2022-TIOL-1197-HC-DEL-IT

Pr.CIT Vs Emmsons International Ltd

On appeal, the High Court observes that the findings of the Apex Court in Woodward Governor India Ltd are squarely applicable to the present case. The Court also observes that the assessee entered into derivative contracts in order to hedge its exchange risk in respect of export proceeds receivable by it in foreign exchange. Forward contracts entered into by the assessee were not by way of trading per se in foreign exchange derivatives. Consequently, CBDT Circular No. 3/2010 dated 23rd March, 2010 has no application to the facts of the present case.

- Revenue's appeal dismissed: DELHI HIGH COURT

2022-TIOL-1085-ITAT-DEL

Shashi Kanta Vs ITO

Whether valid service of notice u/s 148 is a sine qua non for commencing re-assessment proceedings & absence of valid service of notice vitiates the proceedings - YES: ITAT

Whether service of re-assessment notice at assessee's old address no longer in use, invalidates the service of notice, where correct address of assessee had been furnished to the Revenue - YES: ITAT

- Assessee's appeal allowed: DELHI ITAT

2022-TIOL-1084-ITAT-DEL

DLF Garden City Indore Pvt Ltd Vs Pr.CIT

Whether where fundamental aspect of transaction is found as having permeated through different A.Ys and has stood uncontested, then Revenue cannot be allowed to change its view taken in earlier A.Ys - YES: ITAT

Whether where AO has accepted the accounting method followed by the assessee from year to year, in the relevant Assessment Year, the AO cannot take contrary view - YES: ITAT

- Assessee's appeal allowed: DELHI ITAT

2022-TIOL-1083-ITAT-VARANASI

Vinod Kumar Gupta HUF Vs ACIT

Whether interest income can be added to the assessee's income where the same does not belong to the assessee - NO: ITAT

Whether when once the claim of depreciation on passenger vehicle is accepted by the Assessing Officer then the depreciation on delivery van cannot be disallowed on the ground of personal use - YES: ITAT

- Appeal partly allowed: VARANASI ITAT

2022-TIOL-1196-HC-MUM-GST

Sai Kripa Confectioneries Vs UoI

GST - The petitioner had filed the present petition to contest the validity of attachment orders issued against it by the Revenue - Petitioner has also raised a grievance that the action of Respondent No. 1 has resulted even in the Customs Authorities not processing Petitioner's refund application.

Held - The refund application has not been processed because of an "Alert" inserted in the system and Respondent No.7 has identified Petitioner as risky exporters on the basis of extensive data analytics and adverse verification report received from the CGST field information, i.e., CGST Thane Rural. Since, CGST Thane Rural has, pursuant to the Affidavit of Vinayak Azaad, affirmed on 7th September 2022, withdrawn the order of provisional attachments, etc., certainly the insertion of "Alert" could also be deemed to be withdrawn - The Customs Authorities are, therefore, directed to process the refund application of Petitioner within two weeks from today and pass such orders as they may deem fit in accordance with law: HC

- Writ petition disposed of: BOMBAY HIGH COURT

2022-TIOL-1195-HC-RAJ-GST

Shrimali Industries Pvt Ltd Vs State of Rajasthan

GST - The petitioner filed the present petition to assail an order whereby the vehicle of the Petitioner was detained by the Revenue - The petitioner also contests the SCN issued subsequently - The petitioner claimed that the goods were wrongly detained while in transit - Aluminum scrap was being transported in the vehicle and it was falsely shown to be Aluminum sections in the inspection/detention memo - The action so taken is in gross contravention to the procedure provided under Section 68 read with Section 129 of the CGST Act and so also the guidelines/ procedure for interception of conveyances for inspection of goods in movement, and detention, release and confiscation of such goods and conveyances dated 13.04.2018 issued by the Government of India.

Held - In the facts of the present case, it is clear that by portraying the goods in transit to be Aluminum scrap in the documents, the petitioner was indulging in blatant evasion of GST - By no stretch of imagination, can brand new Aluminum sections be placed on equivalence with Aluminum scrap - Apparently thus, the goods in question were fraudulently described as Aluminum scrap and hence, the respondent authorities were perfectly justified in detaining the petitioner's vehicle and the goods after noticing this blatant mis-description during interception - Otherwise also, the show cause notice dated 08.06.2018 is appealable under Section 107 of the CGST Act and hence, viewed in light of the Supreme Court Judgment in the case of Assistant Commissioner of State Tax & Ors. vs. M/s. Commercial Steel Limited , the instant writ petition is not maintainable: HC

- Writ petition dismissed: RAJASTHAN HIGH COURT

2022-TIOL-1194-HC-RAJ-ST

Sonjoli Construction Company Vs UoI

SVLDRS - The petitioner is a proprietorship firm registered under GST - It filed an application under the Sabka Vikas Legacy Dispute Resolution Scheme, 2019 and also deposited the due service tax to the tune of Rs. 10,74,702/- by way of voluntary disclosure - The said application of the petitioner under Section 129(2)(c) of the Finance Act, 2019 has been rejected vide order - Hence the present petition was filed.

Held - The counsel for the Revenue does not dispute that the last date stipulated for initiating the investigation or audit making the applicant ineligible to apply under the Disclosure Scheme was 30.06.2019 - It is not disputed that the notice for providing documents to conduct audit was issued to the petitioner well after 30.06.2019 to be specific on 26.12.2019 - Therefore the action of the respondents in initiating the enquiry and denying the petitioner the opportunity to avail benefit under the SVLDR Scheme is absolutely illegal and unjustified: HC

- Writ petition allowed: RAJASTHAN HIGH COURT

2022-TIOL-863-CESTAT-MUM

CCGST Vs Chemical Process Piping Pvt Ltd

ST - The assessee was issued a SCN demanding service tax for the period October 2011 to March 2016 and for amount of Rs. 2,381/- for period April 2016 to June 2017 - SCN alleged that assessee was providing business auxiliary services for period prior to July 2012 in terms of Section 63(19) of Chapter V of Finance Act, 1994 and after July 2012 they were providing taxable services - It was alleged that assessee on behalf of overseas clients facilitated in process of transportation of consignment from taxable territory to final destination - They engaged freight forwarder/transporter as per their requirements, who provided the services of ocean freight, Customs clearance and THC handling - For these services they raised invoices on assessee - It is alleged that while doing so, assessee charged huge mark-up i.e. the difference between value of services received by service provider and charged by assessee from their clients abroad - This mark-up being in nature of commission for providing said services to clients abroad, assessee was required to discharge service tax liability - Issue involved is no longer res integra and has been covered by Board circular 197/7/2016-ST in favour of assessee - Accordingly, following the decision in BVC Logistics Pvt. Ltd. 2017-TIOL-3238-CESTAT-DEL , impugned order is upheld: CESTAT

- Appeal dismissed: MUMBAI CESTAT

2022-TIOL-862-CESTAT-HYD

Global Constructions Vs CC, CE & ST

ST - Impugned order has partly sanctioned the refund and credited it to consumer welfare fund and partly rejected on the ground of time bar - It is true that the law laid down by Supreme Court in case of ITC Ltd. 2019-TIOL-418-SC-CUS-LB , was that no refund to be sanctioned at all unless the assessments (including self-assessments) are first assailed before Commissioner (A) and modified - Refund claim can be made by person who paid excise duty or from whom excise duty is collected and who has not passed on incidence to any other person - Since these provisions are made applicable to service tax by virtue of Section 83 of Finance Act, 1994, refund can also be claimed of service tax by person who has either paid service tax or person from whom service tax has been collected provided such person has not passed on the incidence to any other person - After examining the refund claim, if it is found admissible and if it is found to have been filed within time, refund so sanctioned has to be credited to consumer welfare fund - However, if claimant proves that it has not passed on the burden to any other person then it shall be paid to claimant - There is no provision, whatsoever, in Section 11B of Central Excise Act, 1944 by which one person who has paid the service tax and who has also passed on burden to others, to file refund claim and request that refund may be sanctioned and given to its customers - The scheme of law is that once the applicant has passed on the burden of service tax to anybody, amount has to be credited to consumer welfare fund and not paid - If the person who has borne service tax wants to claim a refund, such person will have to file a refund claim - Therefore, the very request of appellant before original authority and Commissioner (A) and before Tribunal that the service tax which it had paid and which it has undisputedly also collected from its customers must be refunded to its customers, is against the statutory provision of Section 11B ibid - The provisions of Section 11B ibid cannot be modified to cater to requests of appellant - Part of refund claim was filed beyond a period of one year and hence was found to be inadmissible and was rejected by Commissioner (A) - No infirmity found in impugned order: CESTAT

- Appeal rejected: HYDERABAD CESTAT

2022-TIOL-861-CESTAT-MAD

E I D Parry India Ltd Vs CGST & CE

CX - The only issue to be decided is, whether availment of CENVAT Credit by assessee in respect of Mediclaim Insurance Service for its employees and their dependents (group medical insurance service) for period from April 2010 to March 2011 is correct - The issue as to eligibility of CENVAT Credit in respect of group medical insurance service for period prior to 01.04.2011 is no more res integra , since the same has been laid to rest by orders of various judicial fora - On an identical set of facts, Mumbai Bench of Tribunal in its order in case of M/s. PTC Software (India) Pvt. Ltd. relied upon by appellant, has followed the judgements of Karnataka High Court in cases of M/s. Stanzen Toyotetsu India (P) Ltd. 2011-TIOL-866-HC-KAR-ST to hold that credit of Service Tax paid on insurance premium on group insurance policy is allowable since the said service is an eligible input service - The above order in M/s. PTC Software (India) Pvt. Ltd. was referred to by Mumbai Bench of Tribunal in case of M/s. Faurecia Interior Systems (I) P. Ltd. 2015-TIOL-1073-CESTAT-MUM wherein the issue pertaining to eligibility of refund of CENVAT Credit of Service Tax paid on group insurance policy was considered and decided in favour of assessee - The facts being identical, ratio laid down in cases squarely applies to the facts of the case on hand - Following the ratio decidendi , disallowance of CENVAT Credit in respect of group medical insurance service for disputed period is not sustainable, for which reason the impugned order is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT

2022-TIOL-860-CESTAT-DEL

Satya Power And Ispat Ltd Vs CCE & ST

CX - Appellant is manufacturer of sponge iron and for this purpose they require raw material like iron ore, coal and dolomite - According to department on this Iron ore fines/iron concentrates although the appellant have availed input Cenvat credit at the time of receipt in factory but at the time of removal proportionate Cenvat credit has not been reversed under provisions of Rule 3(5) of CCR, 2004 and also that appellant had received short quantity of coal in their factory premises as compared to quantity shown in bill - Accordingly, a SCN was issued to appellant - So far as demand under Rule 3(5) ibid on clearance of Iron Ore Fines/Iron Ore Concentrate is concerned, issue is no more res integra in view of decision of Tribunal in matter of Nutun Ispat & Power Ltd. in which also the issue was whether the Iron ore fines, which are not used by assessee in further manufacture and cleared, will attract provisions of Rule 3(5) ibid and Tribunal while giving the finding in favour of assessee therein, rejected the appeal of revenue - So far as short receipt of coal is concerned on which department is demanding duty, that is also not sustainable - There is no allegation or any evidence of clandestine removal of said quantity of coal - Mere shortage cannot ipso facto lead to allegation of clandestine removal and for this, reliance placed on decision in Anand Founders & Engineers 2015-TIOL-2655-HC-P&H-CX - Since this short receipt cannot be treated as clandestine removal therefore there is no reason not to accept the submission/explanation given by appellant - Therefore, demand cannot be sustained: CESTAT

- Appeal allowed: DELHI CESTAT