I-T- Entity engaged primarily in achieving objectives of general public utility and charity is entitled to exemption u/s 2(15): HC

I-T- No addition can be made in respect of completed or unabated assessment in absence of any incriminating material: HC

I-T - Revenue should refund entire amount of income tax recovered by them from ex-army official, which was exempted and which they had paid in respect of disability pension: HC

I-T - Income tax recovery against director of company u/s 179 merits to be quashed, if director proves lack of control on financial affairs: HC

I-T - Expenditure incurred for rehabilitation of sister concern can be said to be wholly incurred for purpose of commercial expediency, and hence allowable u/s 28: HC

I-T - If notice issued u/s 148A(b) proceeded on completely incorrect premise, then order based on such notice deserves to be set aside: HC

I-T - Provisions of Direct Tax Vivad se Vishwas Act, 2020 do not make any distinction as to mode in which appeal is preferred as long as it is pending: HC

I-T - If assessee had made specific request to afford opportunity of personal hearing through video conference, then Revenue is required to grant same to assessee: HC

I-T - If show cause notice-cum-draft assessment order is issued to assessee, reasonable opportunity is required to be given to him: HC

VAT - While considering claims for exemption from tax, burden of proof is strictly on assessee to demonstrate that claim for sales return is made within period of six months from date of sale transaction: HC

VAT - Mere shifting of business place simpliciter and with knowledge of AO, will not attract penal provisions under Kerala VAT Act: HC

VAT - Interest on additional demand is leviable from date of filing of return: HC

Cus - The amount encashed by way of bank guarantee remained with Revenue as deposit and accordingly appellant is entitled to interest on refund from date of deposit till date of refund @6% p.a.: CESTAT

CX - Parle Biscuits was justified in distributing credits on input services attributable to final product on a pro-rata basis proportionate to turnover of each unit between their manufacturing plants and appellant : CESTAT

ST - Benefit u/s 80 of Finance Act 1994 merits being allowed where assessee deposits tax with interest & 25% penalty & also had sufficient reason to believe that it had no tax liability: CESTAT

ST - Contract and VAT registration provide necessary evidence to confirm that contract is a works contract, appellants having opted to pay duty under new scheme have made themselves eligible for composition scheme under works contract service: CESTAT

2023-TIOL-529-CESTAT-DEL

Victora Auto Pvt Ltd Vs CC

Cus - The appellant is in appeal against impugned order for grant of interest on the amount of bank guarantee, which was wrongly encashed by Customs Department - Revenue have encashed bank guarantee for Rs. 9,78,291/- on 17.05.2012, which matter already stands adjudicated vide O-I-O dated 18.06.2014, wherein it has been held that appellant have completed re-export obligations on 31.03.2012 and no amount was required to be recovered from them, upon issue of SCN in May, 2012 - Further, said O-I-O has attained finality - The amount encashed by way of bank guarantee remained with Revenue as deposit and accordingly with the meaning of Section 129 EE, appellant is entitled to interest on refund from the date of deposit till the date of refund @6% p.a. - Accordingly, Adjudicating Authority is directed to grant interest on refund @6% p.a. for the period 17.05.2012 to 28.05.2015, within a period of 45 days: CESTAT

- Appeal allowed: DELHI CESTAT

Ajmer Food Products Pvt Ltd Vs CCGST & CE

CX - Appellant claims to be a contract manufacturing unit engaged in manufacturing biscuits for its principal Parle Biscuits - The inputs used for manufacture of biscuits are supplied by Parle Biscuits which pays for inputs but appellant takes credit of the same and utilises the credit for payment of duty on biscuits cleared on account of Parle Biscuits - The appellant also claims that it availed and utilised input services used in relation to manufacture of biscuits for Parle Biscuits in accordance with provision of CCR, 2004 - The final product is cleared on payment of excise duty by appellant on maximum retail price declared by Parle that is printed on packages of biscuits, as is provided under rule 10A of Central Excise (Valuation) Rules, 2000 - The excise duty paid by appellant is over and above the amount of CENVAT credit reimbursed by Parle Biscuits - SCNs were issued to appellant to show cause as to why CENVAT credit of service tax distributed by Parle Biscuits to appellant should not be denied - Parle was justified in distributing credits on input services attributable to final product on a pro-rata basis proportionate to turnover of each unit between manufacturing plants of Parle and its contract manufacturing units, including the appellant under rule 7(d) of the CENVAT Rules - Impugned order is set aside: CESTAT

- Appeal allowed: DELHI CESTAT

S R Import Export Vs CC

Cus - A SCN was issued to appellant, rejecting declared value and re-determining the value in terms of Rule 5 and 6 of Rules, holding the goods liable for confiscation under Section 113(i), imposing redemption fine under Section 125 of Customs Act, 1962 restricting drawback eligibility to re-determined value of export goods - Also imposing penalty under Section 114(iii) and 114AA of Customs Act - The foremost contention of appellant is that there is no basis to arrive at conclusion of overvaluation - Further, he has not been provided with relied upon documents and have not been granted opportunity to cross-examine Sh. Rohit Gupta on whose evidence the valuation has been determined against appellant - He has also submitted that valuation cannot be determined on the basis of visual examination and therefore seizure and further proceedings of confiscation are illegal - It appears from the record that appellant had not submitted any reply to SCN - However, revenue and also the appellant agreed that matter could be remanded back to adjudicating authority for denovo proceedings, so that appellant gets an opportunity to cross-examine Sh. Rohit Gupta, and also submit the documents as called for by Department - On the basis thereof, adjudicating authority may re-consider the case granting due opportunity to both the sides - Accordingly, appeal allowed by way of remand to adjudicating authority to decide the issue afresh by granting an opportunity to both sides to submit the documents and cross-examine Mr. Rohit Gupta: CESTAT

- Matter remanded: DELHI CESTAT

Network Vs CCE

ST - The appellants were providing internet/cable connections to the general public as agents of M/s SIFY - On the basis of certain information received, Department came to the conclusion that these cable TV operators like the appellant were required to pay Service Tax under 'Business Auxiliary Service' and were not paying the same - SCN dated 22.11.2007 was issued to the appellant seeking to confirm the Service Tax of Rs. 55,641/- along with penalties under Section 76,77 and 78 of the Finance Act, 1994 - The Original Authority vide Order dated 30.11.2009 confirmed Service Tax of Rs. 34,572/- and imposed penalty under Section 76; penalty of Rs. 34,572/- under Section 78 and penalty of Rs. 1000/- under Section 77 - The Appellate Authority vide Order dated 03.05.2011 has upheld the order but reduce the penalty to the extent of the penalty deposited by the appellants. Held - The brief issue that remains in the instant case is whether the appellants are liable to pay the balance of penalty when they have discharged the duty liability along with interest and also have paid 25% of the penalty on receipt of the communication of the Original Authority - We find that in the facts and circumstances of the case and looking into the fast changes that were coming in the Service Tax law during the relevant period, it can be concluded that the appellant being a small operator had no wherewithal to keep track of the law and thus, the applicability of the Service Tax to him, more so looking into the fact that the main cable operator M/s SIFY had discharged Service Tax on the entire amount collected from the customers, there are reasons to believe that there were sufficient reasons for the appellant in not discharging the applicable Service Tax - Looking into the conduct of the appellants in depositing the tax with interest and 25% penalty the provisions of Section 80 are invited and the benefits of Section 80 can be extended to the appellants - Thus, we find that the penalties imposed are not sustainable: CESTAT

- Appeal allowed: CHANDIGARH CESTAT

Kumar Builders Vs CST

ST - Issue to be decided is as to whether appellants are rendering works contract service and as to whether they are entitled to avail composition scheme thereunder - The issue whether or not a certain contract is a non vivisectible composite contract or a service contract simplicitor can best be answered by contract itself - A plain reading of contract brings out the fact that a certain amount of material is involved and appellant was required to pay VAT on the same and that an advance at the rate of Rs. 2400/per 1000 bricks would be paid to appellant - It talks of involvement of material and does not provide for bifurcation of material and service portion - Therefore, it has to be concluded that contract is a composite one and not vivisectible and therefore, qualifies to be works contract - The department's objection that contract is not dated will not help the cause of revenue - Department never raised this point in either O-I-O or O-I-A - Only allegation was that appellants did not provide corroborative evidence - They did not dispute the contract itself - Contract and VAT registration available on record provide the necessary evidence to confirm that contract is a works contract - In view of Apex Court judgment in case of Larsen & Toubro Ltd 2015-TIOL-187-SC-ST reiterated in M/s Total Environment Building Systems Pvt. Ltd 2022-TIOL-62-SC-ST , works contract are chargeable only from 01.06.2007 - Appellants having opted to pay duty under new scheme vide their letter dated 04.06.2007 have made themselves eligible for composition scheme under works contract service: CESTAT

- Appeal allowed: CHANDIGARH CESTAT