I-T - Since AO has failed to aver particulars of information available with them which has led to formation of belief that income has escaped assessment, reopening in such case is mere 'change of opinion': HC

I-T - Qualifying words 'in limine' that apparently restrict eligible assessees for availing settlement under DTVSV, are contrary to its object and reasons : HC

I-T - Unless any income has escaped assessment by reason of failure on part of assessee to disclose fully and truly all material facts necessary for assessment, AO has no jurisdiction for reassessment : HC

I-T - Once Assessee had paid interest on outstanding amount of penalty, then upon deletion of penalty, assessee becomes entitled to refund of penalty paid by him as well as interest thereon paid u/s 220(2) : HC

I-T - Since Settlement Commission disposed of application without reasons and ordered that interest accrued on actual date and not due date, it is contrary to provisions of law: HC

I-T - If without framing any substantive assessment, AO sought to recover amount assessed protectively rather recovered same by issuing demand notice and recovery certificate, their action is not sustainable : HC

I-T- AO erred in making an addition when the entire investment was properly explained by the assessee: ITAT

I-T- Issue of LTCG can be remanded back as there is no concrete finding either in re-assessment or in NFAC's order as to attraction of sec 50C: ITAT

Cus - When there is nothing on record to evidence that market survey was confined, unarguably, to imported goods without which re-determination thereof fails the test of law: CESTAT

ST - Security Deposit, Earnest Money Deposit, Liquidated damages and penalty recovered by appellant are not taxable under Section 66E (e) of Finance Act, 1944: CESTAT

CX - Cenvat credit shall be admissible in respect of inputs contained in any waste, refuse or byproduct, duty demand confirmed by impugned order cannot sustain on merits: CESTAT

ST - Since the entire service tax along with interest was paid, there was no need to issue Notice as provided in Section 73(3) of Finance Act, Notice issued by invoking extended period is bad in law and it cannot be sustained: CESTAT

2023-TIOL-621-CESTAT-MUM

Wadhumal And Sons Vs CC

Cus - Appeal filed against impugned order upholding rejection of value declared in 21 nos. bills of entry for clearance of 'PVC sheeting' and enhancing it by recourse to rule 7 of Customs Valuation (Determination of Value of Imported Goods) Rules, 2007, with consequent differential duty to be recovered under section 28 of Customs Act 1962 from appellants and confiscating the goods under section 111(d) and section 111(m) of Customs Act, 1962 but ordered for redemption on payment of fine while imposing penalty under section 112(a) and section 114AA of Customs Act, 1962 on all the appellants - The lower authorities proceeded on the assumption that impugned goods are of 'prime' quality but, nonetheless, relied upon alternatives in valuation that are not consistent with finding for it is inconceivable that similar goods, of 'prime' quality, were not being imported and sweeping declaration of non-availability is not borne by any record of search for such - It would not be out of place to suggest that lower authorities appear unsure of their own conclusions inasmuch as determination, and approval thereof, in accordance with residual rule 9 was not allowed to stand on its own but placed alongside rule 7 of Rules, 2007 - Each of rules therein are, even if intended to be sequentially applied, mutually exclusive and subject only to declaration of standard in rule 3 of Rules, 2007 - It is clear from manner in which re-determined value has been computed and from specific assertion of market survey being confined to imported goods, that it is based on prices obtaining for domestically produced articles - The valuation under rule 9 fails on this ground - Likewise, rule 7 requires adoption of value of identical or similar imported goods sold in India as the base for computation of unit price - There is nothing on record to evidence that market survey was confined, unarguably, to imported goods without which re-determination thereof fails the test of law - Impugned order is set aside: CESTAT

- Appeals allowed: MUMBAI CESTAT

2023-TIOL-620-CESTAT-KOL

Mahanadi Coalfields Ltd Vs CCGST & CE

ST - Appellant is engaged in business of mining and selling of coal - While entering into commercial contracts in regular course of business, there are certain clauses which provide a penalty for nonobservance/ breach of terms of contract to safeguard commercial interest - The appellant also collects penalty (compensation) from buyers of coal on quantity of un-lifted/short lifting of coal in terms of Coal Supply Agreement - They also forfeits Security Deposit (SD) /Earnest Money Deposit (EMD) for con-compliance with terms of E-Auction Coal Sale Policy in case the coal is not lifted, or the price of coal is not deposited - The Commissioner in impugned order has confirmed demand of service tax by holding that Liquidated Damages/penalty amount, Earnest Money Deposit forfeiture is a consideration received by appellant for tolerating an act on the part of local buyers/contractors under Section 66E (e) of Finance Act, 1944 - Issue is squarely covered by decision of Tribunal in case of M/s South Eastern Coalfields Ltd. 2020-TIOL-1711-CESTAT-DEL , wherein the demand raised against appellant was dropped and said decision has been followed by Mumbai Bench of Tribunal in Western Coalfields Limited 2022-TIOL-834-CESTAT-MUM - Thereafter, CBIC vide its Circular No.214/1/2023-Service Tax has admitted the said order - Following the decision in case of Western Coalfields Ltd. , it is held that Security Deposit, Earnest Money Deposit, Liquidated damages and penalty recovered by appellant are not taxable under Section 66E (e) of Finance Act, 1944 - Demand against appellant is not sustainable: CESTAT

- Appeal allowed: KOLKATA CESTAT

2023-TIOL-619-CESTAT-KOL

Haldia Petrochemicals Ltd Vs CCE

CX - The issue arising for determination is, whether pro-rata Cenvat credit is required to be reversed under Rule 4(5)(a) of CCR, 2002 with respect to short receipt of processed inputs from the premises of job workers - The wastage/scrap generated in course of job work, being less than 10% for PP Granules and 5% for LLDPE Granules was within prescribed SION norms and existence of such wastage/scrap in process of conversion is provided for not only in Work Orders but also in permission conferred by Jurisdictional Commissioner under Rule 4(6) of CCR - Further, the claim of appellant that job worker had discharged duty on waste/scrap at the time of his clearance is also supported by job work Challans, excise Invoice besides the Order passed by Assistant Commissioner in connected proceedings - The Board vide its Circular dated 3 April 2000 has also clarified that Cenvat credit shall be admissible in respect of inputs contained in any waste, refuse or byproduct - Therefore, duty demand confirmed by impugned O-I-O cannot sustain on merits: CESTAT

- Appeal allowed: KOLKATA CESTAT

2023-TIOL-618-CESTAT-KOL

Oil And Natural Gas Corporation Ltd Vs CCE & ST

ST - The appellant had entered into a contract with Newsco to provide Mining Services - As Newsco had an office in Mumbai, appellant had a bona fide belief that they are liable to pay service tax for the services rendered by them - Department issued a SCN, demanding service tax along with interest and penalty - The department approached Newsco to ascertain whether they have paid service tax on this transaction - When it came to light that Newsco has not paid service tax, department issued SCN demanding service tax from appellant - Even though there was no liability on appellant, they deposited service tax along with interest to put the issue at rest and informed the department - In adjudication, the Commissioner confirmed service tax payable along with interest - They also imposed penalties under section 77 and 78 of Finance Act, 1994 - Entire issue of service provided by Newsco to appellant was within the knowledge of department - Since the entire service tax along with interest was paid, there was no need to issue Notice as provided in Section 73(3) of Finance Act - Thus, the Notice issued by invoking extended period is bad in law and it cannot be sustained - As there was no suppression involved and there was no intention to evade payment of service tax, penalty under Section 78 is not imposable - As there was no violation of provisions of Section 77, no penalty imposable under this section - It is a fit case to invoke section 80 of Finance Act, 1994 to waive all penalties - Accordingly, penalties imposed on appellant under Sections 77 and 78 of Finance, 1994 are set aside: CESTAT

- Appeal allowed: KOLKATA CESTAT