I-T - AO assumes jurisdiction u/s 179 of Income tax Act only when there is failure to recover dues from Private Company after efforts have been made by Revenue to recover such dues: HC

I-T - If prosecution has failed to make out prima facie case that opposite parties wilfully tried to evade tax, considering fact that fund was substantially disclosed, no penalty deserves to be allowed: HC

I-T - Assessee's express request to AO to keep outstanding tax demand in abeyance, till such time his appeal of concerned assessment year is disposed of, merits consideration: HC

I-T - Even though I-T Dept. was already ssued notice by Writ Court while considering request for approving scheme of amalgamation, that would not absolve any party of its obligation to intimate final order of amalgamation: HC

I-T - When re-opening an assessment, the AO should have some fresh facts or materials which might be from external sources or internal source: ITAT

I-T-Benefit of exemption shouldnot be denied merely on account of delay in furnishing the same: ITAT

ST - Once the tax liability has been discharged and accepted by Department, consequential Cenvat credit cannot be denied at recipient's end: CESTAT

ST - Appellant's activity of painting work to various industrial and commercial clients is covered under definition of 'works contract' service, appellant have correctly discharged Service Tax under head of works contract: CESTAT

Cus - As regard the issue of unjust enrichment, it is purely based on fact on the basis and same can be established on basis of books of accounts along with CA Certificate, matter needs to be reconsidered by Commissioner (A).: CESTAT

2023-TIOL-141-CESTAT-MUM

Mahindra And Mahindra Ltd Vs CCE

CX - Issue relates to recovery of credit distributed by registered 'input service distributor' which, in addition to appellant unit, also undertakes manufacture at Rudrapur and Haridwar both of which are entitled to 'area based exemption' extended by notfn 50/2003-CE and according to central excise authorities, precluded thereby, from deriving benefits of CENVAT Credit Rules, 2004 to such extent - The decision of Tribunal in re Fosroc Chemicals India Pvt Ltd 2015-TIOL-2817-CESTAT-BANG was also about a dispute in which 'other cess' on the output of units, entitled to same 'area based exemption', was to be computed on basic excise duty which was exempted - The distinction of 'automobile cess', in so far as not being a levy under Central Excise Act, 1944 and not levied on basic excise duty, with 'other cess', that are exempted owing to exemption of basic excise duty in decision of High Court of Bombay, makes the position abundantly clear - Nothing further survives in finding of adjudicating authority in impugned order as the discharge of 'automobile cess' effaces coverage of rule 6 of CENVAT Credit Rules, 2004 to the output of the Rudrapur and Haridwar factories - Consequently, impugned order is set aside: CESTAT

- Appeal allowed: MUMBAI CESTAT

2023-TIOL-140-CESTAT-MUM

ICICI Lombard General Insurance Company Ltd Vs CCGST & CE

ST - Appellant, a general insurance company, is engaged in business of providing insurance services in respect of automobiles - Out of the premium collected from buyer of motor car/vehicle, a portion thereof is paid by appellant to automotive dealer as a commission, on which amount, automotive dealer also charged service tax and duly discharged such liabilities on making payment into Central Government Account - Appellant had availed Cenvat credit, which had been sought to be denied and recovered along with interest and penalty - The Original Authority has held that no commission could have been paid by appellant to automotive dealer under Section 40 of Insurance Act, 1938 and that such payment, which is recorded by automotive dealers in their books of account as a commission, is illegal - Such findings are untenable on question of eligibility to avail Cenvat credit, when tax had undisputedly been received by Government from automotive dealers - In addition, regulatory authority namely, Insurance Regulatory Development Authority (IRDA) has also clarified the correct position in letter addressed to Chairman, CBEC - Such clarification furnished by Regulatory Authority regarding procedures followed for outsourcing non-core services of automotive/automobile dealers, is binding on Revenue - Law is well settled that when a competent authority has issued an opinion on a particular matter, same shall be binding and cannot be questioned by other agencies - No merits found in impugned order, insofar as; it has confirmed adjudged demands on appellant - Therefore, impugned order is set aside: CESTAT

- Appeal allowed: MUMBAI CESTAT

2023-TIOL-139-CESTAT-AHM

F K Enterprise Vs CCE & ST

ST - The appellants have been providing service of painting work to various industrial and commercial clients - Case of Department is that since, these activities were carried out on old building, same is not covered under works contract service in terms of definition of works contract as provided under Section 65(105)(zzzza) Finance Act, 1994 and therefore, appellant is liable to pay deferential duty - Appellant carried out repairing/painting work in respect of plant, machinery, and building of their client - The service was provided along with material used for painting work and tappellant also paid the VAT on works contract - To cover appellant's activity under works contract, it is not necessary that said activity should be carried out only in respect of new building - Painting is clearly covered under term finishing service, repair, renovation or similar service - Since a civil construction or a part thereof covers plant machinery, building on which appellant has carried out the painting work, same is specified under clause (b) therefore, painting work carried out on a civil structure or part thereof and also of a pipe line or conduit and undisputedly it is for the purpose of commerce or industry - The activity of appellant is squarely covered under definition of "works contract" - Therefore, appellant have correctly discharged Service Tax under head of works contract - Impugned order is not sustainable, same is set aside: CESTAT

- Appeal allowed: AHMEDABAD CESTAT

2023-TIOL-138-CESTAT-AHM

CC Vs Reliance Industries Ltd

Cus - Revenue is in appeal challenging the order of Commissioner (A) whereby the refund claim filed by appellant was allowed on merit as well as on unjust enrichment - Revenue has not challenged the merit of case however their appeal is only on ground of unjust enrichment - Commissioner (A) simply followed the order of Mundra (Customs) and no independent finding was given as regard the unjust enrichment - Despite that Revenue has raised ground of unjust enrichment in their appeal - As regard the issue of unjust enrichment, it is purely based on fact on the basis and same can be established on the basis of books of accounts along with CA Certificate - Issue of unjust enrichment depends on fact of each case, however, Commissioner (A) except following the order of Mundra (Customs), neither examined the fact of unjust enrichment of present case, nor given any independent finding - Therefore, matter related to issue of unjust enrichment needs to be reconsidered by Commissioner (A): CESTAT

- Matter remanded: AHMEDABAD CESTAT