I -T -When assessee already admitted the sales as revenue receipt, there is no case for making the addition u/s 68 or tax the same u/s 115BBE again : ITAT

I-T - It is fit case for remand where findings of CIT(A) are not based on any objective analysis of evidence & merely rehashes submissions of both parties : ITAT

I-T - Expenditure incurred by assessee w.r.t. existing customers & was incurred solely for purposes of business, merits being allowed u/s 37(1) : ITAT

I-T - Search assessment u/s 153C against assessee, based on material recovered from search operation conducted w.r.t. third party & where evidence recovered does not pertain to assessee, is invalid: ITAT

ST - Providing of Corporate Guarantee cannot be a taxable service in absence of flow of consideration: SC

ST - The apparel that cricketers had to wear was team clothing, which bears brand/marks of various sponsors, they were not rendering any services which could be classified as business support services: CESTAT

Cus - Entire case was based on document but no physical movement or diversion could be established, demand of customs duty is not sustainable and consequently, confiscation of goods is also incorrect and illegal: CESTAT

CX - Assessee will be eligible for Cenvat Credit for foundation bolts purchased by them, as same have been received and used by them in their factory where they are manufacturing dutiable goods: CESTAT

2023-TIOL-26-SC-ST

CCGST & CE Vs Edelweiss Financial Services Ltd

ST - The Revenue filed present appeal to contest vires of order passed by the Adjudicating Authority in dropping of proceedings, initiated against the assessee for having provided 'corporate guarantee' on behalf its subsidiaries located within and outside India and not discharging tax liability thereto as provider of 'banking and other financial services' for the period prior to, and after, 30th June 2012, in order-in-original dated 27th October 2017 of Principal Commissioner of GST & Central Excise, Mumbai East - The SCN had proposed recovery of Rs. 97,95,62,947/-, comprising Rs. 3,22,01,255/- towards provision of guarantee to overseas companies for which consideration had been received and of Rs. 94,73,61,692/- towards guarantees provided free of charge to their Indian subsidiaries, for rendering taxable service under section 65(105)(zm) of Finance Act, 1994 till 30th June 2012 and 'service' defined in section 65B(44) for the period thereafter till March 2015 - The adjudicating authority had concluded that receipt of commission from overseas companies, being consideration for export of services, was not taxable and that, insofar as domestic facilitation was concerned, the definition in section 65(12) of Finance Act, 1994 did not extend to 'corporate guarantee' which, unlike 'bank guarantee', finds no specific enumeration as 'other financial services' therein, till 20th June 2012 and that for the period thereafter, absence of 'consideration' for facilitating 'corporate guarantee' excluded such activity from coverage within the definition of 'service' in section 65B(44) of Finance Act, 1994 - The CESTAT held that that interim orders do not offer themselves as binding precedent and that Any activity must, for the purpose of taxability under Finance Act, 1994, not only, in relation to another, reveal a 'provider', but also the flow of 'consideration' for rendering of the service - In the absence of any of these two elements, taxability under section 66B of Finance Act, 1994 will not arise - Hence Revenue's appeal was dismissed.

Held - This was a case where the assessee had not received any consideration while providing corporate guarantee to its group companies - No effort was made on behalf of the Revenue to assail the above finding or to demonstrate that issuance of corporate guarantee to group companies without consideration would be a taxable service - In these circumstances, there is no reason to admit this case: SC

- Appeal dismissed: SUPREME COURT OF INDIA

2023-TIOL-257-CESTAT-AHM

Yusufkhan M Pathan Vs CCE & ST

ST - Both the appellants are international cricket players and they had entered into contract with cricket team owners (known as franchisee) whereby they were employed/ engaged to play cricket for respective teams in terms of contracts for IPL seasons - The issue that arises for consideration is whether activity carried out by appellants would be taxable to service tax under Business support service - The apparel that they had to wear was team clothing, which bears the brand/marks of various sponsors - Appellants were not providing any service as an independent individual - It cannot be said that appellants were rendering any services which could be classified as business support services - Definition of "Business Support Service" does not specifically cover the activity done by appellants - Further, on perusal of agreement title "Indian Premiere League Playing Contract", it is abundantly clear that a person who has earned reputation and recognition as a player is employed by franchisee and it is not the other way round - Further, as seen from other clause of agreement, there is no doubt that appellant has been appointed/ engaged by respective Franchisee under the agreement of 'employment' - The agreement create the relationship of "employer - employee" - The employer - employee relationship cannot be disputed - Therefore, a ppellants are not liable to service tax under "Business Support Service" - Demands confirmed by way of impugned order are set aside: CESTAT

- Appeals allowed: AHMEDABAD CESTAT

Siddhnath Shipping Vs CC

Cus - Case of Revenue proceeded on the premise that appellant was engaged in diversion of goods in DTA clandestinely and fabricated the records to show that said goods were exported - The contention of department is that M/s Siddhnath got good quality goods from M/s Cosmic, EOU unit; re-warehoused them at his KASEZ unit which was registered as a trading unit with KASEZ; it diverted these goods to DTA and in their guise attempted to export inferior quality goods, therefore liable to duty - Not a single customer is brought on records who has received clandestine removed goods - No documentary evidence is produced in form of transport receipts, delivery challans or any other documents relating to removal of disputed goods - Unless there is conclusive evidence that appellant has clandestinely cleared disputed goods without payment of duty, liability cannot be placed on appellant on the basis of conjectures and surmises - Therefore, demand based on assumption and presumption is not sustainable - It is evident from investigation that goods which have been received by appellant and the same was presented for export were not cleared from 100% EOU of M/s. Cosmic but same were loaded at Ambaji Market, Surat - In such case, there is no change of goods which is loaded in container and received in SEZ and presented for export - Goods are in original packing and marka therefore, no doubt can be raised that goods were changed enroute - Investigation could not bring any single evidence for unloading of alleged original goods from container and reloading in other transport vehicle for transportation of the same - If contention of revenue is presumably accepted that appellant have cleared the original goods from their SEZ then, as per allegation of investigation that appellant have attempted to export the inferior quality of goods, investigation could not bring on record particularly from SEZ records that disposal of original goods and procurement of low quality goods in guise of original goods - Entire case was based on document but no physical movement or diversion could be established - In this fact, demand of customs duty is not sustainable and consequently, confiscation of goods is also incorrect and illegal - Demand of customs duty on appellant is not sustainable on merit - Accordingly, impugned orders are set aside: CESTAT

- Appeals allowed: AHMEDABAD CESTAT

Gagan Ferrotech Ltd Vs CCGST & CE

CX - Appellant is manufacturer of Sponge Iron and TMT Bars - They have taken Cenvat Credit for foundation bolts received by them under Capital Goods heading - They have taken 50% of Credit in 2007-08 and balance 50% has been taken in 2008-2009 - SCN was issued seeking as to why Cenvat Credit taken by them should not be denied and recovered on the ground that foundation bolts would fall under Chapter 73 which is not covered under Capital Goods definition - Appellant contested the SCN both on merits as well as on account of limitation - Admittedly, foundation bolts have been received and used by appellant in their factory where they are manufacturing dutiable goods - As vendor has classified the goods under CET 8455, appellant has taken Credit on foundation bolts as Capital goods, taking Cenvat Credit in two different years - In case of A.C.C. Ltd. , Tribunal has held that assessee will be eligible for Cenvat Credit for foundation bolts purchased by them - Impugned order is set aside on merits - Coming to limitation, it is an admitted fact that Cenvat Credit taken on foundation bolts has been reflected by them in their ER-1 Returns in 2007 and 2008 - They have also enclosed copies of RG-23C records, wherein Credit taken for foundation bolt has been shown clearly - Therefore, Department cannot claim that appellant has indulged in any suppression - SCN has been issued on 27/04/2011 for Credit taken in 2007 and 2008 - Since all the details of Cenvat Credit have been properly recorded by appellant in ER-1, question of suppression will not be sustainable - Therefore, present confirmed demand for extended period is legally not sustainable even on account of limitation: CESTAT

- Appeal allowed: KOLKATA CESTAT