I-T- Re-assessment order quashed where commenced based on incorrect reading of facts of & where no speaking order is passed when rejecting the objections raised thereto: HC

I-T- Assessee slept over rights to claim refund of tax amount found to be wrongfully appropriated by Revenue - Revenue directed to refund amount to assessee, since public money is involved - However, fine of Rs 50000/- imposed on assessee, to be deposited in Juvenile Justice Fund: HC

I-T- Re-assessment is unwarranted where based on change of opinion & where assessee had made full & true disclosure of material facts necessary for assessment: HC

I-T- Penalty order quashed where passed without giving a personal hearing to the assessee; rules of natural justice contravened: HC

I-T-Statutory provision u/s 148A does not obligate the Assessing Officer to supply any material/evidence, provided the show-cause notice contains reasons disclosing the mind of the AO of nursing the prima facie view of income having escaped assessment : HC

CX - Demand has been raised for contravention of Rule 8(3A) ibid restricting utilization of Cenvat credit during period of default which provision has been declared ultra vires/invalid by Court, hence demand cannot be sustained: CESTAT

Cus - Amendment sought by appellant to be allowed after examination of relevant license at the time of export and to direct consequent benefit considering that only one benefit will be permitted and also to only one person i.e. supporting manufacturer or merchant exporter: CESTAT

ST - Amount collected by appellant from their customers against as 'activation charges' of equipment/ software features are covered under activity of sales of goods and not covered under provisions of 'Service', a ppellant is not liable to pay service tax : CESTAT

2023-TIOL-767-CESTAT-KOL

Rana Iron And Power Ltd Vs CCE

CX - By impugned order, Commissioner has disallowed Cenvat Credit taken by appellant and ordered for recovery of the same along with interest under Rule 14 of Cenvat Credit Rules, 2004 r/w Section 11A & 11AB of CEA, 1944 - The Commissioner has also imposed penalty of equal amount under Rule 15 - Issue is no more res integra and is squarely covered by judgement of Calcutta High Court in case of M/s. Goyal MG Gases Pvt.Ltd. , wherein it is categorically held that when Rule 8 (3A) is declared ultra vires by different High Courts then Revenue cannot take a different stand contrary to said judgements - The Court further declared Rule 8(3A) as invalid which is not stayed by Supreme Court - Gujarat High Court in case of Indsur Global Ltd.= 2014-TIOL-2115-HC-AHM-CX has declared the words "without utilizing Cenvat Credit" under Rule 8(3A) as ultra vires which means that the assessee can discharge duty by utilizing Cenvat Credit which is what exactly has been done in instant case by assessee - Said judgment has been followed by Calcutta High Court in case of Goyal MG Gases Pvt.Ltd. which is not stayed by Supreme Court - The Calcutta High Court in said case, has declared the provisions of Rule 8(3A) ibid as invalid and further has held that Revenue cannot take a different stand and parity has to be extended to assessee - Demand has been raised for contravention of Rule 8(3A) ibid restricting utilization of Cenvat credit during period of default which provision has been declared ultra vires/invalid by Court, hence the demand cannot be sustained - Impugned order is set aside: CESTAT

- Appeals allowed: KOLKATA CESTAT

2023-TIOL-766-CESTAT-AHM

Vinny Royal Plasticoates Pvt Ltd Vs CC

Cus - Conversion of shipping bills - Appellant was engaged in manufacture and export of 'Vinyl Flooring' - They had cleared said goods for export through merchant exporter under Duty Free Replenishment Certificate (DFRC) scheme, whereas, license holder in case was M/s. Vinny Royal Plasticoates Pvt. Ltd. - Tribunal agrees with submissions of appellant as what is to be considered is amendment in shipping bill under Section 149 of Customs Act, which is an independent provision and has to be examined as per its own ambit - There can be no reasons not to permit amendment under Section 149, if requirement of pre-existing documents was fulfilled as mentioned in proviso - In fact, the benefit sought being an export benefit has to be liberally construed and so are the relevant Export Notifications - The shipping bills even when filed by M/s. B. Framjee & Co., clearly indicated in body of shipping bills that they were allowed to claim the benefits and likewise the liabilities if any will equally be that of supporting manufacturers in the matter, which were M/s Royal Cushion Vinyl Products Limited - Such a dispensation having been permitted and not specifically restrained under relevant scheme, benefit of Exports Scheme can well be claimed by appellant after suitable amendment in relevant shipping bills - It is found from the factual narrative including relating to sealing of containers, actual export of goods, raw material used, that there was substantial similarities in two schemes as to allow the benefit of either Export Scheme, if liberally construed - It is trite law that exemption notifications relating to exports are required to be construed liberally - Tribunal is inclined to agree with request of appellant to allow amendment sought by them after examination of availability of relevant license at the time of export and to direct consequent benefit as sought by appellant considering that only one benefit will be permitted and also to only one person i.e. supporting manufacturer or merchant exporter - Matter is remanded back to original authority to implement the same by allowing amendment as per law: CESTAT

- Matter remanded: AHMEDABAD CESTAT

2023-TIOL-765-CESTAT-AHM

Avaya Global Connect Vs CCE & ST

ST - The issue involved is that whether activation charges for activating software which is inbuilt in telecom system of EPABX is liable to service tax under Business Auxiliary Service or otherwise when sales tax on the same activity was discharged - Case of department is that since activation of software activity was carried out after sale of equipment, same is liable for service tax under Business Auxiliary Service - Same issue in appellant's own case, only for the different period has already been decided in their favour - The amount collected by appellant from their customers against as "activation charges" of equipment/ software features are covered under activity of sales of goods and not covered under the provisions of "Service" as defined in the Act - On software activation charges, appellant is not liable to pay service tax - Therefore, ratio of said decision in appellant's own case is squarely applicable - Accordingly, following the said decision of Tribunal, impugned order is set aside: CESTAT

- Appeal allowed: AHMEDABAD CESTAT