I-T - Re-assessment invalid where based on re-appreciation of material already available during original assessment & thus amounts to change of opinion : HC

I-T - Tribunal cannot entertain application for condonation of delay where appeal itself is not maintainable before the Tribunal: ITAT

I-T- No addition can be made only on the basis of declaration in the absence of supporting evidences: ITAT

I-T- Expenditure made towards registration fee for increase in authorised capital is capital expenditure: ITAT

I-T- Merely because assessee has declared business loss during relevant year does not imply that he has no creditworthiness : ITAT

GST - Professional services rendered by E&Y Limited to overseas EY Entities is not as an 'intermediary' - Services are of 'export'; refund of ITC admissible: HC

GST - Petitioner produced rent agreement as well as electricity bills - Bench finds no ground for respondent to believe that petitioner was non-existent - Order cancelling registration set aside: HC

Cus - In view of clear mandate of notification to exempt additional duty of customs, the goods imported are eligible to exemption from additional duty of customs thereon:CESTAT

CX - Assessee is entitled for cenvat credit on service of Repair & Maintenance in respect of after sale service provided during warranty period:CESTAT

ST - Merely because service tax was paid under different registration but by same company, cannot be tantamount to non- payment of service tax, demand of service tax which was already paid cannot be made twice:CESTAT

2023-TIOL-369-HC-DEL-GST

Ernst And Young Ltd Vs Addl. CCGST

GST - Petitioner had provided various professional services to overseas EY Entities in terms of the agreements entered into between E&Y Limited and the respective overseas EY Entities - The invoices raised described the nature of services for the invoiced amount as "Professional Fees for Services" - Petitioner had raised invoices for the Services rendered and the consideration was received directly from the overseas EY Entities in convertible foreign exchange - The petitioner's ITC had accumulated on account of supplies availed by the petitioner for performing the Services - Petitioner applied for refund of the ITC availed for providing its professional services for the periods December 2017 to March 2020 - Insofar as the question whether the petitioner had exported services, the Adjudicating Authority found in the negative - Adjudicating Authority proceeded on the basis that the Services provided by the petitioner were “intermediary services” and since the petitioner was located in India, the place of supply of the Services was not the location of the recipients of the Services but the petitioner's location in India - Appellate Authority upheld the decision of the Adjudicating Authority that the services rendered by the petitioner were intermediary services, hence the present petition.

Held : Adjudicating Authority has proceeded on the basis that since the service agreements were between EY Entities and the petitioner's head office (E&Y Limited), the petitioner has rendered services on behalf of its head office (E&Y Limited) - Bench is unable to agree with the interpretation of the adjudicating authority that the last limb of the definition of 'intermediary' under Section 2(13) of the IGST Act is controlling the definition of the term - Even if it is accepted that the petitioner has rendered services on behalf of a third party, the same would not result in the petitioner falling within the definition of 'intermediary' under Section 2(13) of the IGST Act as it is the actual supplier of the professional services and has not arranged or facilitated the supply from any third party - Assumption that the petitioner has acted as a buying and selling agent, is without any basis - Circular No.159/15/2021-GST dated 20.09.2021 issued by the Central Board of Indirect Taxes and Customs also acknowledges that there is broadly no change in the scope of intermediary services in the GST regime vis-à-vis the service tax regime - Concededly, the services rendered by the petitioner to EY Entities, prior to roll out of the GST regime, was considered as 'export of services' - Services rendered by the petitioner are not as an “intermediary” and, therefore, the place of supply of the Services rendered by the petitioner to overseas entities is required to be determined on basis of the location of the recipient of the Services - Since the recipient of the Services is outside India, the professional services rendered by the petitioner would fall within the scope of definition of 'export of services' as defined under Section 2(6) of the IGST Act - Impugned order as well as the impugned orders-in-original are set aside - Petition is allowed: High Court [para 22, 23, 24, 25, 28, 29, 33, 35]

- Petition allowed: DELHI HIGH COURT

A S Fastener Vs Superintendent

GST - By order dated 22.02.2022, respondent no.2 had rejected, the petitioner's application seeking restoration of his registration which was cancelled ab-initio - Petitioner also impugns an order dated 09.03.2022 passed by respondent no.2, rejecting the petitioner's claim for input tax credit on the ground that the petitioner was found to be non-existent and non-functional at the registered place of business.

Held: There is no dispute that the petitioner had over a period from August, 2017 to November, 2022 filed its return and paid the necessary taxes – Petitioner had also produced the rent agreement as well as the electricity bills - In view of the above, Bench finds no ground for respondent no.1 to believe that the petitioner was non-existent from the date of its registration - In the present case, there is no allegation that the petitioner had obtained its registration by means of fraud, wilful misstatement or suppression of facts - Petitioner's registration cannot be cancelled from the date he had obtained the same – Bench is also unable to accept that the petitioner can be denied the refund of accumulated ITC solely on the ground that he had not filed the necessary information regarding transfer of business and other returns to establish the transfer of stocks and capital goods more so when the petitioner's claim for inverted tax structure as well as the accumulation of ITC has been verified by respondent no.2 - Impugned order dated 14.01.2022 cancelling the petitioner's registration is set aside - Impugned order dated 09.03.2022 rejecting the petitioner's application for refund is also set aside – Petition disposed of: High Court [para 27, 29, 30, 32, 33, 34, 35]

- Petition disposed of: DELHI HIGH COURT

2023-TIOL-367-HC-DEL-VAT

Lakra Oil Company Vs CTT

Whether Tribunal had erred in rejecting the appeal of the assessee without accepting the fact that there was a clerical error in reporting the sales - YES: HC

- Appellant's appeal dismissed: DELHI HIGH COURT

2023-TIOL-242-CESTAT-MAD

National Institute Of Ocean Technology Vs CC

Cus - The issues involved is, whether assessee is eligible for exemption from payment of SAD in terms of Notfn 51/96-Cus for import of various scientific and technical instruments during June, 2011 to August 2011 and whether any excess duties paid are refundable without challenging self-assessment or order of assessment of bills of entry - Issue is covered in assessee's own case vide Tribunal's Final Order dated 23.12.2013 - Apex Court in case of ITC Ltd. 2019-TIOL-418-SC-CUS-LB has held that assessment order including self-assessment needs to be challenged to become eligible for refund - In this case, assessee when applied for refund, the refund sanctioning authority has communicated vide their letter, that the order of assessment cannot be reviewed or modified in terms of Apex Court decision in case of M/s. Priya Blue Industries 2004-TIOL-78-SC-CUS - Refund would arise only if order is reviewed, modified or revised - In view of decision of Apex Court, Tribunal do not find any need to decide about eligibility of assessee for SAD exemption under Notfn 51/1996 was issued on 23.07.1996 - Further, the facts in this appeal clearly indicate that assessee have not challenged the order of assessment, as such, assessee is not eligible for refund - The order of rejection of refund by refund sanctioning authority is upheld: CESTAT

- Appeal dismissed: CHENNAI CESTAT

CCE & ST Vs Falcon Pumps Pvt Ltd

CX - Issue involved is, whether assessee is entitled for cenvat credit in respect of after sale service provided during warranty period of sale of goods manufactured by them - The service on which assessee have taken the cenvat credit is provided in nature of Repair & Maintenance of excisable goods i.e. pumps sold by assessee during warranty period - It is also observed that policy of free servicing during warranty period is not under dispute - Assessee is not collecting service charges from customer which is the service during warranty period is provided free of cost therefore, cost of such service stand included in transaction value of excisable goods sold by them - Service charges stand included in value of manufacture of goods hence, it can be conveniently viewed that activity of servicing during warranty period is in relation to manufacture of final product - Moreover, servicing during warranty period is a vital part of business activity of assessee - Rule 2(l) particularly in inclusion clause covers the 'activities relating to business' therefore, said service during warranty period also clearly falls under category of 'activities relating to business' - Assessee is entitled for cenvat credit on service of Repair & Maintenance during warranty period accordingly, impugned order is upheld: CESTAT

- Appeal dismissed: AHMEDABAD CESTAT

Welspun Corp Ltd Vs CCE & ST

ST - Demand was confirmed only for the reason that appellant at their Anjar unit had not paid service tax on services received from abroad on reverse charge basis - However, there is no dispute as the same was admitted in SCN as well as in impugned order that service tax was deposited by appellant's head office at Mumbai under different registration number of input service distributor - Appellant's Anjar unit is not a separate entity as same is part of a single entity i.e. Welspun Gujarat Stahi Rohren Ltd which is now known as Welspun Corp Ltd. - Therefore, payment made by head office under different registration number cannot be demanded from appellant's Anjar Unit and if at all there is discrepancy of different registration of head office, department could have adjusted service tax paid by head office against service tax due of appellant's Anjar unit - From the Circular 58/7/2003 it is clear that discrepancy such as payment of service tax under wrong registration can be adjusted against correct registration for which service tax is actually due - In present case even though the service tax was paid under registration of head office Mumbai but appellant's Anjar unit as well as their Mumbai head office is one single entity - Accordingly, in the light of said circular, department could have made necessary adjustment instead of raising demand twice on the appellant - Merely because the service tax paid under different registration but by same company, cannot be tantamount to non- payment of service tax - Hence, demand of service tax which was already paid cannot be made twice - Accordingly, demand of service tax is not sustainable: CESTAT

- Appeal allowed: AHMEDABAD CESTAT