I-T - Re-assessment - Notice issued to deceased assessee is defective in law: HC

I-T - Participation by assessee in assessment without raising objection with regard to issuing of improper notice u/s 143(2), in assessment and appellate proceedings, will not preclude him from challenging same later before Tribunal: ITAT

I-T- Filing of Form 67 is a directory requirement, not mandatory: ITAT

I-T- Interest paid on borrowed amount does not fit into provisions of S. 24(b) of the Act: ITAT

I-T - Deduction u/s 80P(2)(d) is rightly denied where assessee is not found to be entitled to it & where assessee fails Test of Enduring Benefit: ITAT

GST - Budgetary Support Scheme - 50/2003-CE - Fact that petitioner was denied benefit at the material time cannot be read to mean that petitioner was not availing the same: HC

Service - Even if repatriation is the right of the employer, its exercise shall necessarily be in accordance with prevalent rules - To fix responsibility on officer who has failed to so do it: HC

GST - Cancellation of registration - petitioner deserves fresh opportunity to file reply to fresh SCN; order cancelling registration stands quashed: HC

VAT - Mis-description of electro cardiographs & medical equipment in delivery note cannot be taken as intention to evade tax; penalty u/s 67(1) is unwarranted: HC

CX - In absence of a statutory provision which prescribes that registration is mandatory, authorities committed a serious error in rejecting claim for refund on the ground which is not existence in law: CESTAT

ST - Condition in Rule 6(3A) of CCR, 2004 to intimate the department is only a procedural one and such procedural lapse is condonable and denial of substantive right for such procedural failure is unjustified: CESTAT

Cus - Refund application was filed for amount as was deposited in name of duty but was not liability of appellant since goods have been re-exported and were never cleared for home consumption, hence section 27 would not be applicable to such refunds: CESTAT

2023-TIOL-170-HC-AHM-GST

Milap Enterprise Vs UoI

GST - The petitioner, a company, filed the present petition seeking that directions be issued to the Department authorities concerned to restore the petitioner's GST registration - It is also sought that directions be issued to set aside the order passed against the petitioner; that the petitioner be permitted to file appropriate returns and that the tax amount already deposited by the petitioner be apportioned.

Held - The issue at hand has been resolved via the judgment in the case of Aggarwal Dyeing and Printing Works vs. State of Gujarat ., wherein it was held that the statute provides specific forms for different stages such as registration, cancellation & revocation of the cancellation of registration & so the same must strictly be adhered to & that it is equally important that the Proper Officer empowered under the Act should adhere to the rules of natural justice - Hence it would serve the ends of justice in the event the petitioner is provided a fresh opportunity to respond to the fresh show cause notice - Resultantly, the writ petition deserves to be allowed and is accordingly allowed - The order dated 28.09.2018 of cancellation of registration of the petitioner passed by Commercial Tax Officer, Ghathak 17, Ahmedabad is hereby quashed and set aside - The registration of the petitioner is restored forthwith - The Revenue is directed to permit the assessee to file the returns and is also permitted to issue fresh show cause notice within four weeks of receipt of copy of this order and avail an opportunity to the assessee in accordance with law: HC

- Writ petition disposed of: GUJARAT HIGH COURT

2023-TIOL-168-HC-DEL-GST

Special Cables Pvt Ltd Vs CBIC

GST/CX - Notification dated 05.10.2017 issued by the Ministry of Commerce and Industry, Department of Industrial Policy and Promotion - Notification No.50/2003-CE dated 10.06.2003 - Petitioner is aggrieved by denial of budgetary support under the "Scheme of Budgetary Support under Goods and Services Tax (GST) Regime to units located in State of Jammu & Kashmir, Uttarakhand, Himachal Pradesh and North-Eastern States including Sikkim" - The petitioner claims that it was entitled to such an exemption from the date of commencement of production at its unit in Rudrapur , Uttarakhand till 01.07.2017, the date when the Notification ceased to apply with the roll out of the Goods and Service Tax regime - Respondents have denied the budgetary support under the Scheme to the petitioner on the ground that it did not fulfil the criteria of an 'Eligible unit' under the Scheme as it was not availing the Area Based Exemption under the Notification.

Held: The key question to be addressed is whether the petitioner's unit was entitled to the benefit of the Notification, and was availing the exemption immediately before the first date of July 2017 - In view of the orders dated 23.12.2011 passed by the Commissioner (Appeals) and the order dated 07.11.2017 passed by the CESTAT, it cannot be disputed that the petitioner was eligible for benefit under the Notifications ab-initio - A plain reading of paragraph 4.1 of the Scheme indicates that for a unit to qualify as an 'eligible unit', it is required to satisfy two conditions - First, that it was eligible before first date of July 2017 to avail the benefit of ab initio exemption or exemption by a refund for payment of central excise duty in terms of notification as specified in paragraph 2 of the Scheme - And, second, that the unit was availing such exemption immediately before the 01.07.2017 - The contention that the petitioner does not satisfy the second condition of availing the said exemption before first day of July 2017 is unmerited - The fact that the petitioner was denied the benefit at the material time, cannot be read to mean that the petitioner was not availing the same - Said controversy stands settled by the order dated 23.12.2011 passed by the Commissioner (Appeals) and the order of the CESTAT dated 07.11.2017 - The petitioner was not granted the benefit and, therefore, had paid the duty of central excise under protest but at the same time, had continued to pursue its right to exemption under the Notification - Since the petitioner has also secured an order sanctioning refund of the said duty, there can be no doubt that the petitioner has availed of the benefit under the Notification - Fact that the respondents had carried the matter to CESTAT and in the meantime, had insisted on collecting the central excise duty, which was paid by the petitioner under protest, cannot be construed to hold that the petitioner had not availed of the benefits immediately prior to 01.07.2017 - Bench directs the respondents to release the budgetary support amount as assessed to the petitioner in terms of the Scheme as expeditiously as possible but in any event within a period of six weeks - Respondent no.3 is also directed to grant registration to the petitioner to enable it to file online claims as prayed for by the petitioner - Petition is allowed: High Court [para 9, 11, 13, 14, 15, 19, 20]

- Petition allowed: DELHI HIGH COURT

2023-TIOL-173-HC-KERALA-MISC

State Of Kerala Vs Vivanta By Taj

In considering the Original Petition, the High Court observes that the issues raised by the Revenue are very near identical to the issues that were raised before and disposed off by the Tribunal. Hence the Court finds no reason to interfere with the findings of the Tribunal, having found no errors therein.

- Petition dismissed: KERALA HIGH COURT

2023-TIOL-169-HC-KERALA-VAT

State Of Kerala Vs BPL Ltd

Whether the mis-description of electro cardiographs and medical equipment in delivery note cannot be taken as an intention to evade tax, so as to be punishable with imposition of penalty u/s 67(1) of the Kerala VAT Act - NO: HC

- Revision petition dismissed: KERALA HIGH COURT

2023-TIOL-167-HC-AHM-SERVICE

Vandana Khatri Vs UoI

Miscellaneous - Service - Petitioner seeks issuance of writ of certiorari or any other appropriate writ for quashing the order dated 28.07.2022 passed by the Central Administrative Tribunal dismissing the application and confirming the relieving order dated 15.11.2021, repatriating the petitioner to her parent department i.e. CGST, Audit, Durgapur, Kolkata without serving any notice during her maternity leave and also passing the consequent order dated 29.07.2022 relieving the petitioner with immediate effect.

Held: The manner in which the order has been passed while she was on maternity leave without issuance of notice, as stipulated under the DoP&T instructions dated 17.06.2010 by labelling it as an administrative exigency, it is quite obvious that this administrative exigency arises from the administrative warning dated 14.10.2021 which, without seeking any explanation, proceeded by a notice of repatriation and as per the instruction, she has been put to jeopardy of immediate transfer during her maternity leave when the baby was extremely young and no salary has been made available to her - This incident of non-issuance of notice before repatriation will obviously warrant interference to the extent of fixing the responsibility on the officer who has failed to so do it - Court cannot be oblivious of the chronological events and the pre-determined step of the officer concerned to repatriate her to the parent department at the time when she deserved, if nothing else, humane treatment and legalized approach - The least that could have been done was to issue the notice before repatriation and make payment of her salary - If the petitioner remained protected by virtue of judicial orders, those in the authority have no right to gag her by not paying the salary because she did not join at her parent department - She has not remained unauthorisedly absent to deserve this approach - Even if the repatriation is the right of the employer, its exercise shall necessarily be in accordance with the prevalent rules - Resultantly, this petition is allowed partly interfering with the order of the Tribunal by directing the respondent to follow the prescribed procedure of issuance of notice before repatriating the petitioner - Her salary shall also be paid without fail within four weeks of the receipt of this order -Petition is disposed of: High Court [para 12.3, 12.4, 12.5, 13, 14]

- Petition disposed of: GUJARAT HIGH COURT

2023-TIOL-103-CESTAT-DEL

Elan Electronics India Vs CC

Cus - Appeal filed against impugned order vide which order of rejection of refund claim has been upheld by Commissioner (A) being barred by time - Sole issue to be decided is as to whether time bar under section 27(1) of Customs Act, 1962 is invokable with respect to impugned refund claim - Admittedly, amount in question was paid at the time of presentation of Bill of Entry as duty on goods / vehicles imported by appellant - It is also admitted fact on record that those goods since were not allowed to be imported without any requisite certificate - Since Certificate was not available with appellant that they made a request for goods to be re-exported - There was no occasion for appellant to actually pay customs duty - Hence amount in question cannot be called as amount of duty to which section 27 applies - As per Article 265 of Constitution of India, no tax shall be levied from or collected except by authority of law - It becomes abundantly clear that stage of collection of duty was never arrived, there was no need for Customs Department to ask for any amount as duty - The duty of Rs.7,76,205/- which stand deposited since at the stage prior to scrutiny of impugned Bill of Entry, hence remained as deposit made by appellant for which department has no authority to retain - Resultantly, same cannot be called as amount of duty - There had never been challenge by department to order allowing the re-export of impugned goods - Refund application was filed for the amount as was deposited in name of duty but was not the liability of appellant since the goods have been re-exported and were never cleared for home consumption - Such an amount was out of scope of being called duty, hence section 27 would not be applicable to such refunds - Commissioner (A) has wrongly invoked section 27(1) of Customs Act, 1962 while rejecting the refund claim as barred by time - Section 26A(1) is otherwise not applicable to facts of present case - Appellant is held entitled for said refund along with interest at the rate of 6% from date of payment till sanction arrived: CESTAT

- Appeal allowed: DELHI CESTAT

2023-TIOL-102-CESTAT-KOL

Celex Technologies Pvt Ltd Vs CCGST & CE

CX - Appellant is a manufacturer of high security number plates for motor vehicles - During audit, it was observed that they had availed CENVAT Credit, additional duty of Rs.3,03,722, H.E. Cess and S.H.E. Cess totaling Rs.11,89,958/- on the strength of nine invoices - It was alleged that these invoices were not consigned to registered address of appellant's manufacturing premises - It is the case of Department that CENVAT Credit pertained to a period prior to registration and there is no scope for accepting Cenvatable documents which do not bear the name of their factory premises - Appellant had taken CENVAT Credit on duty paid goods on above-mentioned inputs and utilized the said credit for payment of duty for clearance of their final product - It has been held by Tribunal, High Courts and Supreme Court that substantial benefit should not be denied on the ground of procedural lapses - Impugned orders cannot be sustained and are accordingly set aside: CESTAT

- Appeal allowed: KOLKATA CESTAT

2023-TIOL-101-CESTAT-AHM

JMC Projects India Ltd Vs CST

ST - The allegation against appellant as per SCN is that they have failed to produce any of original input service invoices for verification by audit officers and has chosen to submit randomly selected photocopies of input services invoices on which they have availed Cenvat credit - The Cenvat credit has been availed without any proof of having valid documents as prescribed under Rule 9 of CCR, 2004 - They have not fulfilled the conditions of Rule 6(3A) of Rules, 2004 - The Commissioner in impugned order also upheld said allegations - On the contrary, appellant submitted that there is no manipulation in Cenvat credit register and all the documents and information has been provided to department - All the original invoices are always available at their respective regional office where input service is received - Matter should go back to adjudicating Authority for verification of invoices /documents and Cenvat credit register maintained by appellant - Dispute relating to admissibility of Cenvat credit in absence of exercise of option to avail proportionate Cenvat credit under provisions of Rule 6 of Cenvat Credit Rules, 2004 is also remanded to adjudicating authority for a fresh decision - Condition in Rule 6(3A) to intimate the department is only a procedural one and such procedural lapse is condonable and denial of substantive right for such procedural failure is unjustified - Accordingly, impugned order is set aside: CESTAT

- Matter remanded: AHMEDABAD CESTAT