I-T - AO without pointing any deficiency in primary document cannot held that assessee failed to prove identity of creditor, genuineness of transaction and credit worthiness of creditor: HC

I-T - Reopening made on basis of accommodation entry, without even considering objections to reopening submitted by assessee, merits to be quashed: HC

I-T - Levy of penalty would collapse, once addition in assessment order based on which such penalty was levied, was already stands quashed: HC

I-T - Bald assertions in tax evasion petition that assessee had claimed bogus expenses towards salary and other heads, is not sufficient for commencement of reassessment proceeding: HC

I-T - Reassessment order passed by AO without considering reply of assessee on reasons for reopening, merits to be set aside with direction for denovo adjudication: HC

I-T - Where while passing order u/s 148A(d), reply of assessee was not taken into account, such case calls for adjudication afresh: HC

I-T- Merely on basis of statement recorded during survey without corroborating same with any other material addition can't be made u/s 69A: ITAT

I-T- Merely because seller is not present in person before AO, assessee cannot be alleged to have made any unexplained investment: ITAT

Cus - Merely by sending a copy of O-I-O by speed post, department cannot be said to have discharged their liability as they have to communicate the same to appellant which means it has to be served on them: CESTAT

Cus - In the light of admitted failure to comply with licensing requirements, confiscation of goods under Section 111(d) of Customs Act, 1962 is upheld, however redemption fine is reduced to 10% of ascertained value and penalty to 5%: CESTAT

CX - Goods cleared by appellants are for treatment of water, accordingly, appellant has rightly cleared the goods without payment of duty by way of availing benefit of Notfn 3/2004-CE: CESTAT

CX - Challans issued by the Appellant can be eligible documents for allowing Cenvat credit, provided duty paid nature of raw materials supplied is established; case remanded for verification: CESTAT

ST - The demand under service tax on reverse charge mechanism has to be worked out and calculated transaction wise and invoice-wise and in absence of such exercise, SCN is vague and fit to be held misconceived and mis-directed: CESTAT

CX - Refund - E Cess and SHE Cess paid on Oil Industry Development Cess - Whether to be held as paid under mistake of law, pursuant to clarification from Board - Whether limitation u/s 11B would not apply - Difference of opinion: CESTAT

2023-TIOL-598-CESTAT-MUM

Metro Fashions Vs CC

Cus - Appeal filed assailing impugned order rejecting the appeal filed by appellant on the ground of limitation - Section 128 ibid which has been relied upon by Commissioner (A) for dismissing the appeals on the ground of limitation, uses the words date of communication of order, which is 13.9.2019 as the department failed to produce on record any evidence including the tracking record in support of their submission that adjudication order was sent to appellant immediately after passing of O-I-O - Merely by sending a copy of O-I-O by speed post, the department cannot be said to have discharged their liability as they have to communicate the same to appellant which means it has to be served on them as the wording used in Section 128 ibid is 'date of communication of order' - In R. Sundararaj and OSA Shipping Pvt. Ltd. 2015-TIOL-2345-HC-MAD-ST it has been held that merely by sending O-I-O/SCN by registered post would not amount to communication/service of O-I-O - Appellant received copy of O-I-O on 13.9.2019, the appeal before Commissioner (A) was filed on 24.10.2019 which is well within a period of three months from the date of receipt/communication of O-I-O - Therefore, Commissioner (A) has erred in rejecting the appeal on the ground of time bar - Accordingly, impugned order is set aside and matter is remanded back to Commissioner (A) to decide the same on merits: CESTAT

- Matter remanded: MUMBAI CESTAT

2023-TIOL-597-CESTAT-KOL

CC Vs Devraj Trading Company

Cus - Assessee imported old and used worn clothing, completely fumigated which were assessed after value enhancement - The declared value was enhanced, redemption fine and penalty were also imposed on the ground that old and used worn clothing articles are classifiable under Tariff Item No. 63090000 of First Schedule of the Act and is restricted item for import as per Para 2.17 of Foreign Trade Policy 2009-2014, read with ITC HS Classification of import and export items 2009-2014 - Import of goods under Tariff Item No.63090000 is restricted and their import is allowed only against the valid specific license - Adjudicating Authority has imposed redemption fine and penalty at the rate of 30% & 10% of assessed value respectively - On appeal, Commissioner (A) reduced the redemption fine and penalty to 10% & 5% respectively - Similar issue came up before Tribunal in case of Venus Traders wherein it is observed that in the light of admitted failure to comply with licensing requirements, confiscation of goods under Section 111(d) of Customs Act, 1962 is upheld - However, ends of justice would be served by reducing redemption fine to 10% of ascertained value and penalty to 5% - Therefore, redemption fine and penalty confirmed by Commissioner (A) are sufficient to meet the end of justice - No infirmity found in impugned order, same is upheld: CESTAT

- Appeals dismissed: KOLKATA CESTAT

2023-TIOL-596-CESTAT-KOL

Rashtraudhyog Ltd Vs CCE

CX - Appeal filed against impugned order imposing demand of duty along with interest - Appellant is a manufacturer of various excisable products, such as suspension fittings, tension fittings, clamp & connectors and accessories thereof - The allegation of Revenue is that exemption is available for setting up of water supply plant not for power plant - The exemption sought to be denied by way of issuance of SCN, which was confirmed by impugned order - On going through the certificate of District Collector & Magistrate, Bikanar and a certificate issued by Project Head, Barsingsar Project, it is observed that said goods were sold by appellants, which are to be used for demineralization of water and thereafter, to be used for Thermal Power Plant for generation of electricity, which clearly shows that said goods cleared by appellants are for treatment of water - Benefit of Notfn 3/2004-CE cannot be denied - Accordingly, appellant has rightly cleared the goods without payment of duty by way of availing benefit of Notfn 3/2004-CE - Therefore, no duty is sustainable against appellant - No merit found in impugned order, same is set aside: CESTAT

- Appeal allowed: KOLKATA CESTAT

2023-TIOL-595-CESTAT-KOL

Zeus Plastics Pvt Ltd Vs CCE

CX - The assessee is a SSI unit manufacturing plastic articles - They have received raw materials viz. plastic granules and manufactured final products on behalf of M/s. B.S. Enterprise, on receipt of job charges - The raw materials were received under the cover of Delivery Challans and they have not taken credit of the duty paid on the said raw materials - After the job work, they have cleared the excisable goods without payment of duty for the Financial Years 2005-06 and 2006-07, as their value of turnover was within the SSI Exemption limit - The Department contended that the value of clearances of the goods cleared to M/s. B.S. Enterprise was includible in the turnover for the purpose of computation of SSI exemption limit of the Appellant - Accordingly duty was demanded from the Appellant, after crossing the SSI exemption limit for the financial years 2005-06 and 2006-07 - The Appellant agreed for inclusion of the value of clearances for M/s B.S Enterprises in their turnover and paid duty accordingly - For the purpose of computation of duty, value of raw material supplied by M/s. B.S. Enterprise was taken into account and paid duty by issuing TR-6 challans - The case of the assessee is that they are entitled for availing the credit of duty paid on the raw materials received from M/s. B.S. Enterprise as they have paid duty on the final product by including the cost of raw material and job charges - They stated that M/s. B.S. Enterprise have procured the raw materials from various parties including M/s. South Asia Petrochem Ltd. on payment of duty and issued challans to the Appellant indicating the duty paid - The Adjudicating authority passed Order rejecting the claim of the Appellant to avail CENVAT Credit of the duty paid on the raw material on the ground that the Challans are not the proper documents for availment of CENVAT Credit under Rule 9 of the CENVAT Credit Rules - The Order was upheld by the Commissioner (Appeals). Held - The Tribunal in Commissioner of Central Excise, Coimbatore v. Sonal Vyapar Ltd. has held that credit can be allowed on the basis of stock transfer invoices issued when duty-paid nature of the raw material is not in dispute - We find that Rule 9 of the CENVAT Credit Rules prescribes certain documents based on which CENVAT Credit can be availed by a manufacturer - Rule 9 (2) of the CENVAT Credit Rules clearly states that CENCAT Credit cannot be denied on the ground that the document submitted for availment of credit does not contain certain details - In the present case also the challans issued by the Appellant can be eligible documents for the purpose of allowing the credit, provided the duty paid nature of the raw materials supplied by M/s. B.S Enterprise is established - The Appellant claimed that they have the duty paid documents received from their suppliers - Thus, for allowing the credit , the duty paid nature of the raw material received by them from M/s B.S. Enterprise needs to be verified. We find that the Impugned Order does not contain any finding to this effect - Accordingly, we observe that the Order-in-Appeal passed by the Commissioner(Appeals) is liable to be set aside and the issue is to be remanded back to the original Adjudicating authority for the purpose of verifying the duty paid documents available with the Appellant: CESTAT

- Case remanded: KOLKATA CESTAT

2023-TIOL-594-CESTAT-DEL

M P Audyogik Kendra Vikas Nigam (Indore) Ltd Vs Pr.CCGST & CE

ST - The issue arises is, whether demand of service tax under Reverse Charge Mechanism has been rightly raised on appellant - SCN does not contain the gist of allegations for raising demand on RCM basis - The provisions of service tax read with the rules thereunder do not provide for raising of demand on the basis of apparent difference in figure of expenses in balance sheet and the amount offered for service tax in ST-3 Returns - This court takes judicial notice that the demand under service tax on reverse charge mechanism, has to be worked out and calculated transaction wise-wise and invoice-wise - In absence of such exercise, SCN is vague and fit to be held misconceived and mis-directed - Impugned order is set aside: CESTAT

- Appeal allowed: DELHI CESTAT

2023-TIOL-593-CESTAT-MAD

Oil And Natural Gas Corporation Ltd Vs CGST & CE

CX - Appellant filed refund claim on 04.02.2014 for an amount of Rs.19,13,96,099/- being the Education Cess (EC) and Secondary and Higher Education Cess (SHEC) paid by them on the Crude Oil Cess during the period from July 2004 to December 2013 - The refund claim was filed consequent to the clarification issued by CBEC vide Circular No.978/2/2014 CX dated 07.01.2014 - Show cause notice dated 18.10.2014 was issued to the appellant proposing to deny the refund claim alleging that the same is hit by limitation as well as the doctrine of unjust enrichment - Commissioner (Appeals) upheld this order, hence the present appeal before CESTAT

. Held:

Per Member (Judicial):

+ It is evident that only by circular dated 07.01.2014 the Board has expressly clarified that Education Cess and Secondary Higher Education Cess are not to be collected on Cesses which are levied under other Acts but are only collected by the Department of Revenue in terms of those Acts. The appellant has filed the refund claim immediately after the issuance of the said circular. [para 19]

+ Since it necessitated the department to issue a Circular clarifying the confusion as to whether EC & SHEC is to be paid on Oil Industry Development Cess [OID Cess], the amount paid by the appellant in the nature of EC and SHEC on OID Cess can then only be considered as payment made under mistake of law.

+ The High Court in the case of 3E Infotech [ - 2018-TIOL-1268-HC-MAD-ST ] held that when the tax/duty is paid under mistake of law, the claim of refund cannot be barred by limitation merely because the period of limitation under Section 11B had expired. [para 21]

+ Refund claim cannot be rejected on the ground of limitation. [Cases relied upon - Oriental Insurance Co. Ltd. Vs CCE & ST New Delhi - 2020-TIOL-293-CESTAT-DEL , Joshi Technologies International Vs UOI - 2016-TIOL-1755-CESTAT-MUM ] [para 22, 23, 24]

+ Appellant has furnished a certificate issued by M/s. CPCL (buyer) which states that they have not paid the amount of Education Cess and Secondary Higher Education Cess on OID Cess to ONGC (appellant) while purchasing the crude oil from ONGC. [para 28]

+ This establishes that OID Cess has been borne by the appellant. [para 31]

+ Impugned order is set aside. Appeal is allowed with consequential relief. [para 37] Per contra Member (Technical):

+ Every claim for refund of excise duty can be made only under and in accordance with Rule 11 or Section 11B, as the case may be, in the forums provided by the CE Act. No suit can be filed for refund of duty invoking Section 72 of the Contract Act. [ Mafatlal industries Ltd Vs Union of India - 2002-TIOL-54-SC-CX-CB relied upon ] [para 40.2]

+ In this case, the appellant paid monies as tax on his own without 'protest'. It is only after the second clarification issued by the Board that the appellant felt that they had paid duty under a mistake of law and sought a refund, which was dismissed at the two lower levels of the departmental dispute resolution mechanism. Its only now that the 'mistake' has been discovered by way of an appealable decision settling the dispute. [para 40.4]

+ If the claim made due to a 'mistake of law' has to be filed, admitted and disposed of under section 11B of the CE Act, can the refund claim be sanctioned/ allowed by an authority acting under the statute even though the claim is time barred. + Once a refund claim is examined under section 11B of the CE Act, the Proper Officer or any other authority being a creation of the statute, must act within the ambit of that provision and if the application is delayed he has no alternative but to reject it as being barred by limitation. Since the CE Act is a self-contained enactment, providing for the collection and also for refund of taxes which have been collected contrary to law, he cannot import, or act under, the provisions of another statute to examine and dispose the claim. [para 41]

+ A Tribunal acting under a statute cannot question the lack of its power to do 'full justice' in resolving the dispute or act in excess of the power given to it by the CE Act. [para 41.1]

+ If it is held that such claims are not to be examined under section 11B of the CE Act, and similarly its converse that demand under section 11A of the CE Act for taxes short collected/ not collected/ paid etc. due to a 'mistake of law' are also not subject to the limitation of the CE Act, then it would lead to complexities in tax administration and difficulties, both for the department and for the assessee. [para 41.2]

+ I do not find any specific provision in the said statute which explicitly permits me to judicially decide and condone the delay in the filing of the impugned refund claim, allowing the appeal. I am hence constrained to reject the appeal for refund on the grounds of limitation under Section 11B(1) of the CE Act. [para 41.3]

+ While the claim is found eligible on merits and is not hit by the bar of unjust enrichment, it cannot be sanctioned as it is hit by limitation of time. Appeal stands rejected on the grounds of limitation alone.[para 43] Difference of Opinion: Following questions are framed for resolution by the Third Member:-

1. Whether the appeal is to be allowed on the ground that the refund is not hit by limitation under section 11B of the Central Excise Act, 1944 as held by Member (Judicial)?

OR

Whether the appeal is to be dismissed on the ground that the refund is hit by limitation as provided in section 11B of Central Excise Act, 1944 as held by Member (Technical)?

- Reference to Third Member: CHENNAI CESTAT