I-T- Re-assessment is invalid where there is no tangible evidence available with AO to justify exercise of such power: HC

I-T- As per settled law, once the quamtum additions has been deleted, there is no scope for levy of penalty : ITAT

I-T-217-day delay in filing appeal merits being condoned where assessee's tax consultant did not take cognizance of all the tax demands raised : ITAT

Cus - The amount deposited by assessee during investigation can only be called as deposit, since the assessee has succeeded, amount so deposited should have been refunded to him:CESTAT

CX - Credit of CVD paid through debit in DEPB Scheme is admissible as per Notfn 89/2005-Cus and Bills of Entry assessed by Customs Authorities have not been bifurcated between CVD and Cess, therefore, credit has been rightly availed in conformity with Rule 3 and Rule 9 of CCR, 2004:CESTAT

ST - Re-imbu rsable expenses are not includible in assessable value in terms of Rule 5(1) of Service Tax (Determination of Value) Rules, 2006:CESTAT

2023-TIOL-324-CESTAT-DEL

Pr.CC Vs Rajesh Plastics

Cus - Demand in dispute is regarding past consignments which were already cleared as per declared values by assessee - The assessment, therefore, attained finality - Once the assessment attained finality, it can be either appealed against to Commissioner (A) by either side or a notice under section 28 can be issued by Revenue - While appeal to Commissioner (A) can be for any aspect of assessment, a notice under section 28 can be issued only to recover duty not paid, short paid or erroneously refunded or not levied and it can be issued only by "the proper officer" - SCN was issued invoking extended period of limitation and there is not even any allegation of collusion or suppression of facts and only allegation is of willful mis-statement of value by assessee, which was inferred from his statement - If SCN is issued alleging non-payment or short payment of duty, the basis of such an allegation must be on sound footing, backed by evidence - There is nothing in SCN and in grounds of appeal which shows that declared value was incorrect apart from statements - The statements only show that assessee was ignorant of many factors, but it does not establish that assessee had mis-declared the value - It is also evident that there was no chemical analysis report nor was any sample drawn to allege mis-declaration of nature of goods - Tribunal do not find even a shred of evidence in this case to confirm the demand as proposed in SCN - Therefore, Joint Commissioner was correct in dropping SCN and Commissioner (A) was correct in upholding decision in impugned order - As far as deposit of Rs. 10 lakhs by assessee during investigation is concerned, it can only be called as deposit - The mere fact that some amount has been deposited during investigation does not establish in any way the case of Department - Since the assessee has succeeded, amount so deposited should have been refunded to him, if it has not already been refunded - Impugned order is upheld: CESTAT

- Revenue's appeal dismissed: DELHI CESTAT

Hindustan Zinc Ltd Vs CGST

CX - The issue involved is, whether appellants are entitled to utilise cenvat credit on account of Education Cess and SHE Cess paid through DEPB scrips towards payment of central excise duty in terms of Rule 3(7)(b) of Cenvat Credit Rules, 2004 - Appellant submits that on identical issue for subsequent period in their own case, issue has been decided by Tribunal in their favour vide order 2016-TIOL-3504-CESTAT-DEL by holding that credit of CVD paid through debit in DEPB Scheme is admissible as per Notfn 89/2005-Cus and the Bills of Entry assessed by Customs Authorities have not been bifurcated between CVD and Cess and therefore, credit has been rightly availed in conformity with Rule 3 and Rule 9 of Cenvat Credit Rules, 2004 - Since the issue involved is no more res integra in view of aforesaid decision, therefore, appeals filed by appellant are allowed with consequential relief: CESTAT

- Appeals allowed: DELHI CESTAT

MMTC Ltd Vs CCE & ST

ST - The short issue emerges is as to whether re-imbursable expenses are to be includible in gross value of service provided by appellant in terms of Rule 5(1) of Service Tax (Determination of Value) Rules, 2006 - Issue is no more res integra in view of Intercontinental Consultants and Technocrats Pvt. Ltd. 2012-TIOL-966-HC-DEL-ST and it is held that re-imbursable expenses are not includible in assessable value in terms of Rule 5(1) of Service Tax (Determination of Value) Rules, 2006 - The arguments advanced by Department are that appellant has taken CENVAT Credit on services tax of paid reimbursable expenses, therefore, same is to be includible in assessable value - Said argument is not of any help to Department as it is not a case of Department that appellant was availing inadmissible CENVAT Credit - Therefore, said argument is turned down - Reimbursable expenses are not includible in taxable value of service provided by appellant - Therefore, impugned orders are set aside: CESTAT

- Appeals allowed: KOLKATA CESTAT