I-T- Power of revision warrants being exercised where the assessment order in question is neither erroneous nor prejudicial to the interests of the Revenue : ITAT

I-T- Costs of Rs. 50000/- are imposable on the assessee for not cooperating with the Department in filing ITR & not responding to notices issued to assessee & thus wasted time of authorities: ITAT

I-T- It is duty of CIT(A) to correct an errors in the order passed by AO, such as any errors in computation of refund due to assessee : ITAT

I-T- When additions made in assessment order, based on which penalty for furnishing inaccurate particulars is levied, are deleted, there remains no basis at all for levying penalty: ITAT

I-T - Where assessee has evidences about additions made by AO, they require verification at level of AO before finalizing assessment: ITAT

I-T- When statute provides for particular procedure, authorities have to follow the same & cannot interpret or permitted to act in contravention of statute : ITAT

I-T- Assessee is not entitled to any claim of set off of TDS, which was never deposited by the company : ITAT

I-T - Since genuineness of expenditure of sales commission has not been found to be established by assessee, said sales calls for addition: ITAT

I-T- Power of revision has been rightly exercised where AO accepts ITR filed by assessee without inquiring into massive cash deposit made by assessee in demonetised currency & in contravention of provisions dealing with demonetised currency : ITAT

CX - Appeal was filed before Commissioner (A) resulting in delay of approximately 816 days, there was no power to condone delay after expiry of 30 days period: CESTAT

ST - Assessee is eligible for refund of Service Tax paid on specified services which are wholly consumed within SEZ: CESTAT

CX - Adjudication order passed without allowing cross-examination is an act of gross violation of natural justice, matter remanded for passing a fresh order after allowing opportunity of cross-examination of witnesses: CESTAT

Cus - When theoretical weight is taken by adopting a formula the same will never be matching exactly with physical weight of goods, no value can be enhanced on the basis of weight variation: CESTAT

ST - When entire tax due has been deposited in account of Central Government though not entirely by assessee as a service provider but also by service recipients, it will not be possible to sustain the demand: CESTAT

Cus - Limitation of filing appeal against adjudication order has expired 7-8 years back, department can't file any appeal before 1st Appellate Authority, findings recorded by adjudicating authority in favour of assessee have attained finality: CESTAT

2023-TIOL-737-CESTAT-BANG

Minera Steel And Power Pvt Ltd Vs CCT & CE

CX - Revenue raised a preliminary objection that appeal is filed against order of Commissioner (A) where appeal was rejected on the ground of delay - It is submitted that O-I-O was received by appellant on 5.8.2018 and due date for filing appeal expires on 5.10.2018, however, with condonable limit of 30 days the appeal ought to have been filed on 5.11.2018 - Admittedly, appeal was filed before Commissioner (A) on 28.12.2020 resulting in delay of approximately 816 days - It is further submitted that even if COVID period commencing from 15.3.2020 to 28.12.2020 is deducted from total delay, even then the delay would be around 500 days - It was also submitted that said delay cannot be condoned in view of principle of law laid down by Supreme Court in case of Singh Enterprises = 2007-TIOL-231-SC-CX - Merit found in contention of Revenue: CESTAT

- Appeal dismissed: BANGALORE CESTAT

2023-TIOL-736-CESTAT-AHM

Indu Overseas Pvt Ltd Vs CCE & ST

CX - The main appellant, a 100% EOU is engaged in manufacture of brass parts and accessories from imported duty free brass scrap under EOU scheme - The manufacturer/ assessee were undertaking export of manufactured brass parts and accessories as well as they were also clearing in domestic tariff area on payment of duty as per permission obtained by them from authorities - Impugned O-I-O has been passed without providing for cross-examination of witnesses whose statements were recorded and relied upon by authorities - It is necessary on the part of Adjudicating Authority to accord opportunity of cross-examination of witnesses whose statements have been used as an evidence in the matter - It is mandatory for Adjudicating Authority to follow the principles of natural justice - The adjudication order passed without allowing cross-examination is an act of gross violation of natural justice - Iimpugned order is set aside and matter is remanded back to original Adjudicating Authority for passing a fresh order after allowing opportunity of cross-examination of witnesses: CESTAT

- Matter remanded: AHMEDABAD CESTAT

2023-TIOL-735-CESTAT-AHM

Welspun Corp Ltd Vs CC

Cus - On carrying out weight of H.R. steel plates, it was found that physical weight is in excess to weight mentioned in their import documents such as import invoices and Bill of lading - Case of department is that the valuation of goods should be enhanced to the extent there is excess weight as compared to invoice weight of goods accordingly, a demand was confirmed on excess undeclared HR plates along with appropriate interest and same was upheld by Commissioner (A) therefore, appellant filed the appeal - The weight of HR steel plates is calculated on theoretical basis taking thickness, length and width of HR steel plates and supplier also issue invoices - Accordingly, there is no extra consideration if on this basis there is any increase in physical weight therefore, irrespective of minor difference in weight the value of goods remain same - Therefore, no value can be enhanced on the basis of weight variation - This is an international practice for calculating weight of similar goods like HR steel plates - When a theoretical weight is taken by adopting a formula the same will never be matching exactly with the physical weight of goods - Therefore, due to this minor increase or decrease in weight, valuation cannot be varied - The very same issue in appellant's own case has been considered by Tribunal in 2019-TIOL-485-CESTAT-AHM - Demand is not sustainable - Hence, impugned order is set aside: CESTAT

- Appeal allowed: AHMEDABAD CESTAT

2023-TIOL-734-CESTAT-MUM

Synergic Trailer And Auto Solutions Pvt Ltd Vs CC

Cus - Assessee is in appeal against impugned order wherein their appeal was rejected - Rejection of refund claim on the ground of limitation is totally perverse as Adjudicating Authority has already decided the issue by holding the same within time prescribed and Revenue is not aggrieved with said finding as no appeal has been filed by them - 1st Appeal against any order passed by any officer below the rank of Commissioner of Customs lies with the Commissioner of Customs (A) in terms of Section 128 or Section 129(D)(4) as the case may be - Firstly, Commissioner of Customs has to apply his mind to adjudication order by way of review and if upon review by him the adjudication order is not found to be legal and proper, only then he can direct to file an appeal before Commissioner (A) - Therefore, when without review by proper authority the department can't file any appeal before Commissioner (A) then where is the question of Commissioner (A) suo motu taking up any issue from adjudication order which has been decided in favour of assessee, to decide the same against assessee that too in the appeal filed by assessee - The Adjudication Order has been passed on 23.2.2016 and the limitation of filing appeal against that order has expired 7-8 years back, therefore now the department can't file any appeal before the 1st Appellate Authority and in that scenario the findings recorded by the adjudicating authority in favour of assessee have attained finality - Therefore, matter is remanded back to Commissioner (A) with a direction to decide the appeal afresh confining to issue raised by assessee before said appellate authority - It is needless to mention that said authority must give reasonable opportunity of hearing and of placing on record the relevant document to both the sides: CESTAT

- Matter remanded: MUMBAI CESTAT

2023-TIOL-733-CESTAT-MUM

Vishay Semiconductor India Pvt Ltd Vs CCGST & CE

ST - The issue that requires consideration is as to whether payment of 75% tax by recipient of service, when service provider, assessee was required to deposit 100% tax but paid only 25% tax could be treated as discharge of service tax liability by assessee - This issue was examined by Karnataka High Court in Zyeta Interiors Pvt. Ltd.= 2021-TIOL-2011-HC-KAR-ST which emphasises that where the government received entire amount of tax an assessee cannot be called upon to make payment even if it had deposited some portion of tax dues and the remaining portion was deposited by service provider - It was also observed that once the tax liability has been discharged, regardless of the person who has discharged, an assessee cannot be asked to pay the tax again - The Tribunal in Reliance Securities Ltd. = 2018-TIOL-1291-CESTAT-MUM , Angiplast Pvt. Ltd. = 2013-TIOL-785-CESTAT-AHM and India Gateway Terminal (P) Ltd. = 2010-TIOL-1265-CESTAT-BANG made the same observations - When the entire tax due has been deposited in account of Central Government though not entirely by appellant as a service provider but also by service recipients, it will not be possible to sustain the demand - The penalties could also not, for this reason, be imposed upon directors of appellant - The impugned order is set aside: CESTAT

- Appeal allowed: MUMBAI CESTAT

2023-TIOL-732-CESTAT-DEL

Aadarsh Sri Sai Manpower Solution Pvt Ltd Vs CC, CE & ST

ST - The issue that requires consideration is as to whether payment of 75% tax by recipient of service, when service provider, assessee was required to deposit 100% tax but paid only 25% tax could be treated as discharge of service tax liability by assessee - This issue was examined by Karnataka High Court in Zyeta Interiors Pvt. Ltd.= 2021-TIOL-2011-HC-KAR-ST which emphasises that where the government received entire amount of tax an assessee cannot be called upon to make payment even if it had deposited some portion of tax dues and the remaining portion was deposited by service provider - It was also observed that once the tax liability has been discharged, regardless of the person who has discharged, an assessee cannot be asked to pay the tax again - The Tribunal in Reliance Securities Ltd. = 2018-TIOL-1291-CESTAT-MUM , Angiplast Pvt. Ltd. = 2013-TIOL-785-CESTAT-AHM and India Gateway Terminal (P) Ltd. = 2010-TIOL-1265-CESTAT-BANG made the same observations - When the entire tax due has been deposited in account of Central Government though not entirely by appellant as a service provider but also by service recipients, it will not be possible to sustain the demand - The penalties could also not, for this reason, be imposed upon directors of appellant - The impugned order is set aside: CESTAT

- Appeals allowed: DELHI CESTAT