I-T - Additions u/s 68 upheld by CIT(A) without assigning any justifiable reasons, is unsustainable: ITAT

I-T - Re-assessment cannot be sustained where based on change of opinion & where no new facts have been brought on record to justify re-assessment: ITAT

I-T - Differences in Form 26AS is no basis to make addition, if assessee has demonstrated that such difference is on account of inclusion of service tax by payer of this receipt after subjecting it to TDS: ITAT

I-T - In case of employer, omission to pay dues/liability to employee over period of time and resultant benefit derived by employer, would qualify as cessation of liability: ITAT

I-T - Additions framed on grounds of undisclosed investments are unsustainable where assessee is jewellery trader & makes investments using income generated from such business : ITAT

I-T - Re-assessment commenced based on belief of illicit transactions done by a non-existent company is defect which is not technical irregularity & cannot be cured by applying Section 292B: ITAT

GST - Order, exparte in nature, passed in violation of the principles of natural justice, entails civil consequences, hence is set aside: HC

Cus - Manual Breast Pumps used by lactating mothers are made of plastic & is commonly usable; item is not used by medical practitioners or for specialised medical procedures - hence classification under CTH 9018 is incorrect; correct classification is CTH 3926: CESTAT

Cus - Product literature or intented usage cannot be the sole basis for classification of a product: CESTAT

ST - Use of some software per se would not amount to such activity being taxable under Information Technology Service: CESTAT

2023-TIOL-415-HC-PATNA-GST

Lucky Traders Vs State Of Bihar

GST - Vide impugned order, the Jt. Commissioner has rejected the Input Tax credit claim of the petitioner and tax, including interest and penalty have been imposed without providing any further notice to the petitioner - Petition filed inter alia seeking quashing of the summary order dated 06.06.2022 - Counsel for Revenue has no objection if the matter is remanded and also assures that no coercive steps shall be taken against the petitioner. Held: Bench is of the view that, notwithstanding the statutory remedy, the Court is not precluded from interfering where, ex facie , it forms an opinion that the order is bad in law and which is on account of the following two reasons viz.  (a) violation of principles of natural justice, i.e. Fair opportunity of hearing. No sufficient time was afforded to the petitioner to represent his case; (b) order passed ex parte in nature, does not assign any sufficient reasons even decipherable from the record, as to how the officer could determine the amount due and payable by the assessee - The order, ex parte in nature, passed in violation of the principles of natural justice, entails civil consequences - As such, on this short ground alone, Bench disposes of the present writ petition on mutually agreeable terms, as mentioned - Petition disposed of: High Court

- Petition disposed of: PATNA HIGH COURT

2023-TIOL-277-CESTAT-DEL

Mehar Healthcare Corporation Vs CC

Cus - The appellant filed Bill of Entry No. 8243789 dated 19.1.2017 for import of 3040 pieces of "Manual Breast Pump, Electric Breast Pump and Conduit Connector Cover for medical use" - During the assessment, catalogue was called for and as the goods were found to be Manual Breast Pump, the Department felt that the goods were appropriately classifiable under CTH 3926 instead of 9018 - To support the assertion that the items imported were classifiable under CTH 9018, the appellant drew attention to actual the utility, purposes and various benefits for using the Manual Breast Pump. Held - It is necessary to refer to the case law whereby the test for ascertaining the classification has been laid down - The Apex Court in the case of CCEx Vs. Shree Baidyanath Ayurved Bhawan Ltd, dealt with the issue as to whether the product 'Dant Manjan Lal' could be treated as an Ayurvedic medicine to qualify for exemption under the notification - The Court referring to the decision in Puma Ayurvedic Herbal Vs. Commissioner of Central Excise, Nagpur applied the common parlance test and held that DML is routinely used for dental hygiene and is known as a tooth powder - In view of the principles of classification we do not agree with the appellant that the utility of the breast pump to achieve the benefits of breast feeding is a valid test to classify the breast pump as a medical device under CTH 9018 - The adjudicating authority had rightly dealt with the Annexure B and C submitted by the appellan regarding short and long term use of breast feeding as sponsored by WHO, by holding that these do not have any relevance in ascertaining the classification of a product in view of the principle of law laid down in ESPI Vs. CCE, 1996 (82) ELT 444, that product literature cannot be the sole basis for classification - The heading of chapter 9018 provides instruments and appliances used in medical, surgical, dental or veterinary sciences including scientigraphic apparatus, other electro medical apparatus and sight testing instruments - The breast pump does not fall in any of the categories under the chapter heading - They are not used to perform any specialized surgical procedure nor is used by any medical practitioner - They are not used to perform any specialized surgical procedure nor is used by any medical practitioner - They are simple devices for self use to facilitate the lactating mother in discharge of breast milk as per their convenience - The goods do not require any medical supervision and are available in the market without any prescription - The heading covers a very wide range of instruments and appliances which, in the vast majority of cases are used only in professional practice (e.g. by doctors, surgeons, dentist, veterinary surgeons midwives) either to make a diagnosis, to prevent or treat an illness or to operate etc - The Chapter Heading 3926 on the other hand provides other articles of plastics and articles of other materials - This heading covers articles not elsewhere specified or included, of plastics (as defined in Note 1 to the Chapter) or of other materials of heading 39.01 to 39.14 - There is no quarrel with the principle that most specific entry prevails over general entry, however there is no specific entry for manual breast pump - The product is made of plastic and is a common usable item - Hence the product has nothing to do with any medical or surgical procedures nor is it used by any medical practitioner - It is only a facilitating device for self use by lactating mothers - The impugned order classifying the manual breast pump under CTH 39269090 is upheld: CESTAT

- Appeal dismissed: DELHI CESTAT

Indusface Consulting Pvt Ltd Vs CCE & ST

ST - The Appellant is engaged in issuing digital Security certificates, suitable for E-commerce transactions popularly known as SSL certificates - The Department demanded Service Tax from the Appellant on the dealings on a species of Digital Signature Certificate, under four different taxable service categories, for different period - SCN dt.17.4.12 came to be issued to the Appellant, that SSL certificate and Digital Certificate are distinct and separate - The order sought to recover Service Tax under different service categories for the very same activity, along with interest and proposed to impose various penalties on the Appellant - The Appellant filed reply to the SCN being reply dated 9.8.12 clarifying the exact nature of SSL certificates, and showing that the same are nothing but digital signature certificates only, which are held to be not subject to Service Tax by the Board, vide its clarification dt.5.6.08 - The impugned order came to be passed, confirming the demand of Service Tax along with interest and penalty - On appeal, the Commr.(A) upheld the O-i-O. Held - An identical issue was resolved in Sify Technologies Ltd Vs. C.EX. & S.T.,CHENNAI - After considering the entire gamut of services as well as CBEC clarification bearing F. No. 137/76/2008-CX4 dated 05.06.2008 and F. No. 137/76/2008-CX4 dated 28.07.2008, the bench concluded that the services involved are not taxable services of the nature sought by the Department and simply usage of some software by the party in India would not amount to activities coming under the preview of information technology services - the Sify Order extensively covers the rejection of the activities for service tax under the heads purposed by the department in the instant case also, and even for the same periods - Hence the decision in Sify can be relied on and the impugned order merits being quashed: CESTAT

- Appeals allowed: AHMEDABAD CESTAT

Lakshmi Machine Works Ltd Vs CGST & CE

CX - The issue to be decided is, whether rejection of request to transfer cenvat credit balance to lessee unit is legal and proper - The provision under Rule 10 of CCR, 2004 has already been noticed - Department has referred to agreement between parties to deny permission to transfer cenvat credit with the reason that there is no express stipulation for transfer of all liabilities of appellant-company to lessee unit - On perusal of agreement, it is found that there is a clear intention between parties to transfer ownership of machinery belonging to appellant unit to lessee unit - Such transfer is done along with transfer of raw materials, components and capital goods which indicates that lessee unit is put into shoes of a manufacturer in place of appellant-company - Agreement has to be construed as to what is intention of parties who have entered into agreement and not by word to word analysis - On going through entire agreement, it is clear that there is consensus ad idem to transfer ownership along with assets and liabilities to lessee unit - Rejection of request to transfer cenvat credit balance as per Rule 10 of CCR, 2004 is without any legal or factual basis - Department is directed to issue permission to appellant unit to transfer credit to the lessee unit: CESTAT

- Appeal allowed: CHENNAI CESTAT